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Jalan Trading Co. Private Ltd. and anr. Vs. the State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberAppeal No. 58 of 1965 and Misc. Petn. No. 335 of 1965
Judge
Reported inAIR1971Bom196; (1970)72BOMLR736; 1971MhLJ712
ActsBombay Municipal Corporation Act, 1888 - Sections 5-A, 90, 90(2), 90(4), 90(5), 90(6), 91, 91(1), 460-O and 460-P; Land Acquisition Act, 1894 - Sections 6, 18 and 50(2); Constitution of India - Article 226; Land Acquisition Act, 1870; Bombay Municipal Boroughs Act - Sections 52
AppellantJalan Trading Co. Private Ltd. and anr.
RespondentThe State of Maharashtra and anr.
Appellant AdvocateM.R. Parpia and ;R.P. Bhatt, Advs.
Respondent AdvocateR.J. Joshi and ;R.L. Dalal, Advs.
Excerpt:
..... - if then section 91 is not complied with, all subsequent proceedings for acquisition under the land acquisition act would be bad. the section does not provide that before the municipal corporation moves the government to acquire land under the land acquisition act, the corporation should have made attempts to purchase the land by private treaty and have failed in such attempts. the latter power is vested in the government and there is no indication in sections 90 and 91 that the power of the government is in any way affected by what a local body like the bombay municipal corporation may or may not do. b and a mere perusal of it will show that the petitioners never raised any objection that the acquisition proceedings are bad because the alleged condition precedent namely the..........to the petitioners was being acquired by the state government under the provisions of the land acquisition act. the land admeasures 3,118.63 square yards and is situated at fergusson road, lower parel, bombay. the notification under section 4 was published on 27th february 1964 and the notification under section 6 on 20th may 1965. both the notifications stated the purpose of the acquisition 'for the bombay municipal corporation for the construction of a primary school.' soon after the notification under section 6 the petition was filed on 15th july 1965 and it raises substantially one ground of attack against the acquisition proceedings. it is that ground which is also being pressed before us. the ground is that the requirements of section 90 and 91 have not been fulfilled by.....
Judgment:

1. This is a petitioner's appeal against the summary dismissal of their writ petition by Mr. Justice Kantawala. A part of a certain land belonging to the petitioners was being acquired by the State Government under the provisions of the Land Acquisition Act. The land admeasures 3,118.63 square yards and is situated at Fergusson Road, Lower Parel, Bombay. The notification under Section 4 was published on 27th February 1964 and the notification under Section 6 on 20th May 1965. Both the notifications stated the purpose of the acquisition 'for the Bombay Municipal Corporation for the construction of a primary school.' Soon after the notification under Section 6 the petition was filed on 15th July 1965 and it raises substantially one ground of attack against the acquisition proceedings. It is that ground which is also being pressed before us. The ground is that the requirements of Section 90 and 91 have not been fulfilled by the Bombay Municipal Corporation for whom the acquisition was undertaken, and therefore the entire acquisition is vitiated and illegal and should be set aside. (Section 90 of the Bombay Municipal corporation Act deals with the subject of acquisition of immoveable property by agreement and Section 91 provides for what is to happen when the immoveable property cannot be acquired by an agreement. Section 90 provides that the Commissioner on behalf of the Corporation shall acquire any immoveable property on such terms and at such rates or prices or at rates or prices not exceeding such maxima as shall be approved by the Improvements Committee of the Corporation whenever it is necessary or expedient for him for the purpose of this Act or the Act so provides to acquire a property. Other ancillary powers have also been given to the Commissioner having regard to the requirements of the schemes undertaken by the Corporation and property being needed for such schemes. Sub-section (4) of Section 90 gives power to the Commissioner to execute contracts and other instruments relating to the acquisition of immoveable property and prescribes the mode in which such acquisition shall be made Sub-section (5) provides that no contract for the acquisition of immoveable property or any interest therein or any right thereto shall be binding on the Corporation if the contract is not executed in accordance with Sub-section (4). Sub-section (6) applies all the provisions of Section 90 to any variation of such contract. Then Section 91(1) provides as follows:

'Whenever the Commissioner is unable to acquire any immoveable property under the last preceding section by agreement the State Government may in their discretion, upon the application of the Commissioner made with the approval of the Improvements Committee and subject to the other provisions of this Act order proceedings to be taken for acquiring the same on behalf of the Corporation, as if such property were land needed for a public purpose within the meaning of the Land Acquisition Act. 1870.'

The whole challenge to the acquisition in the present case is based upon this provision of the Municipal law. It has been urged that the power of the Government is only to acquire for a public purpose under the Land Acquisition Act. IN this case the acquisition is 'for the Bombay Municipal Corporation' and so far as the Bombay Municipal Corporation is concerned, it is merely a creature of statute and has to comply with the requirement of that statute. Therefore if Section 91 prescribes a certain procedure which has to be undertaken before the acquisition of any immoveable property can be made for the Corporation then the Corporation is bound to fulfil that mode first before it can launch upon any acquisition under the Land Acquisition Act at all. If then Section 91 is not complied with, all subsequent proceedings for acquisition under the Land Acquisition Act would be bad.

2. We are unable to accept the contention. Section 90 was introduced in order to provide the Corporation with an alternative mode of acquiring property in the interests of speedier acquisition than is usually the case with acquisitions under the Land Acquisition Act and so that its undertakings and works may not be impeded by protracted land acquisition proceedings. Normally no officer of the Corporation would be entitled to purchase land on behalf of the Corporation for himself and therefore it was necessary to enact the provisions of Section 90 is in order to give the Commissioner the power to acquire land by private treaty with parties, subject of course to such limitations as the section itself lays down. If the attempt to acquire land for the Corporation by private treaty is successful, then no further provision is necessary to be made in the law but where such an attempt fails, it is possible that it would be urged that thee is no other remedy left to the Corporation and therefore it was necessary to make the provision of Section 91 providing that if the Commissioner is unable to acquire any immoveable property under Section 90 by agreement then recourse may still be had to the provisions of the Land Acquisition Act. In other words, all the Section 91 indicates is that because the Commissioner attempts to acquire property by private negotiations first and fails in that attempt, the Corporation will not be deprived of its right to have the same property acquired by compulsory acquisition. That was the real purpose behind the enactment of Section 91(1).

3. We can find nothing in the terms of Section 91(1) to suggest that the procedure under Section 90 and Section 91 must be first undertaken before recourse can be had to compulsory acquisition under the Land Acquisition Act. The section does not provide that before the Municipal Corporation moves the Government to acquire land under the Land Acquisition Act, the Corporation should have made attempts to purchase the land by private treaty and have failed in such attempts. In other words, we cannot find any such condition precedent to taking proceedings for compulsory acquisition of land as has been contended for on behalf of the appellants. The provisions of Section 90 and 91 are in addition to the provisions of the Land Acquisition Act so far as acquiring property by the Corporation are concerned and nothing in Section 90 and 91 fetters the powers to acquire under the Land Acquisition Act. The latter power is vested in the Government and there is no indication in Sections 90 and 91 that the power of the Government is in any way affected by what a local body like the Bombay Municipal Corporation may or may not do. In fact under the Land Acquisition Act the party for whom the acquisition is set on foot by the Government is not a 'person interested' in the land acquisition at all. All the right that it has, is to appear and adduce evidence for the purpose of determining the amount of compensation as provided in Section 50, Sub-section (2) of the Land Acquisition Act and no more. All the interest that it has is that to pay or deposit the compensation which may be assessed but it is not and cannot be a party to the proceedings for acquisition under the Land Acquisition Act. It has not right to a reference under Section 18 and is not a 'person interested' within the meaning of that phrase in the Land Acquisition Act. We do not see, therefore, how any act of commission or omission on the part of such a person can fetter or control the power of the State Government to acquire land under the Land Acquisition Act. If it were intended so to control the power of the State Government we should have thought that explicit and express provisions would have been made in Section 91.

4. A learned single Judge of this Court Mr. Justice Tulzapurkar has taken that same view of Misc. Petn. No. 205 of 1964, D/- 22-9-1966 (Bom). The learned Judge answered the precise objections which are now taken after discussing the provisions of Sections 460-O and 460-P of the Bombay Municipal Corporation Act which are for the purpose of the point raised before us in identical terms as Sections 90 and 91. The conclusion which he reached was:-

'I do not think that the Legislature while enacting the provisions of Section 460-P intended to impose or prescribe a condition precedent, the observance of which could be rendered illusory in the above manner. The proper way to construe the opening words of Section 460-P in my view therefore, would be that they do not prescribe or impose any condition precedent as is contended by Mr. Tijoriwala. As I have said above, the object or purpose for which Section 460-P was enacted was not to prescribe or impose any such condition precedent to the exercise of the power of the State Government in the matter of acquiring immoveable property for the B.E.S.T. undertaking of the Bombay Municipality under the Land Acquisition Act, but the object or purpose thereof was the one indicated by me above. The opening words 'Whenever the General Manager is unable to acquire any immovable property under Section 460-O by agreement' cannot in the circumstances be construed or read as 'unless the General Manager is unable to acquire any immovable property under Section 460-O by agreement.'

Another decision in Ambalal v. Ahmedabad Municipality. : [1968]3SCR207 , was brought to our notice. The provisions which were thee sought to be invoked to bar the acquisition were the provisions of Section 52 of the Bombay Municipal Boroughs Act. We are somewhat hesitant to use this judgment in the present case because the provisions of Section 52 are not in pari materia with Sections 90 and 91 of the Bombay Municipal Corporation Act but the observations of the Supreme Court in paragraph 9 of their judgment are instructive.

5. We may also add that in this case when the acquisition proceedings under the Land Acquisition Act were set on foot and notice was issued to the petitioners under Section 4, the petitioners had raised a number of objections under the provisions of Section 5A and these objections were considered and decided. Their letter raising the objections is Ex. B and a mere perusal of it will show that the petitioners never raised any objection that the acquisition proceedings are bad because the alleged condition precedent namely the observance of Section 91 had not been fulfilled. We do not think, therefore, that the petitioners are entitled to raise this new objection to the land acquisition proceedings at this late stage in the appeal or for the matter even in the petition.

6. We have so far decided the matter assuming all the circumstances and questions of fact as counsel on behalf of the appellants would have us assume them viz., that Section 91 has not been fulfilled. But on closer scrutiny it seems to us that in the present case Section 91 was completely fulfilled so far as the Corporation is concerned because, the Corporation did make an attempt to negotiate and was unable to acquire any property by agreement. This is clear from the recitals of facts in paragraph 6 of the petition itself. The Corporation wrote to the petitioners on the 9th of November 1964 by their letter No. ACQ-10/203 stating that they proposed to acquire their property at Lower Parel and adding 'I have, therefore, to request you to state whether you are willing to hand over the said property to the Corporation and if so, terms and conditions thereof. If no reply is received by this office within a fortnight from the date hereof, it will be presumed that you are not interested in handing over you said property to the Corporation and necessary steps will be taken to acquire the same under provisions of Land Acquisition Act I of 1894.' to this the petitioners gave a reply on the 20th November 1964 in which they stated:-

'In this connection please note that notice under Section 4 of the Land Acquisition Act was issued to which we replied by our letter dated 20th June 1964. You also filed you counter-reply and the matter was heard and argued. The matter is now pending awaiting the Land Acquisition Officer's Order.

Under the circumstances we do not understand as to why you have now written to us further in the matter.

There things may be noticed about these two letters' (1) that the Corporation did attempt to negotiate having regard to the provisions of Section 90, (2) that the reply of 20th November 1964 of the petitioners was a clear refusal to negotiate on the ground that the notice under Section 4 of the Land 'Acquisition Act had been issued; (3) we have already shown that the proceedings under Section 90 or Section 91 have nothing to do with the proceedings taken or to be taken under the provisions of the Land Acquisition Act, but we may here also say that the stand taken by the petitioners in their reply dated 20th November 1964 was not justified. Only a notification under Section 4 of the Land Acquisition Act had been issued and that notification is only a preliminary notification saving that the land in any locality is needed or is likely to be needed for a public purpose. It is only after such a notification is issued and objections of parties are considered under Section 5-A that the process of acquisition commences by issue of notice under Section 6. Therefore, we do not think that the stand taken by the petitioners in their letter of 20th November 1964 was a correct stand. In this respect, reference may be made to the recent decision of the Supreme Court in Babu Barkya Thakur v. State of Bombay, : [1961]1SCR128 , wherein that Court indicated the differences between Section 4 and Section 6.

'The purpose of the notification under Section 4 is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels, and if necessary, digging or boring into the sub-soil whether the land was adapted for the purpose for which it was sought to be acquired. It is only under Section 6 that a firm declaration has to be made by Government that land with proper description and area so as to be identifiable is needed for a public purpose or for a company.'

Their Lordships emphasised the distinction between the provisions of the two sections by saying 'What was a mere proposal under Section 4 becomes the subject-matter of a definite proceeding for acquisition under the Act' (Vide p. 1208 of the AIR). Therefore the petitioners can hardly say that because a notification under Section 4 had already been issued they could no longer negotiate with the Corporation. If they could not say that then it is clear that Section 91 was fulfilled.

7. We have gone into the contentions at some length because one of the complaints made on behalf of the appellants was that no reasons were given by the judgment under appeal. Mr. Justice Kantawala dismissed the petition summarily and as is the practice in this Court did not give reasons in such case. Counsel on behalf of the appellants brought to our notice a recent decision of the Supreme Court in Civil Appeals Nos. 2130 and 2131 of 1969. D/- 27-2-1970 (SC) and urged that the fact that the learned Judge did not give reasons for the dismissal of the petition was itself sufficient to set aside his order. We have gone through the judgment referred to end we are unable to hold that it contains any decision that the Court is bound to give reasons when summarily dismissing a writ petition. Even in that case their Lordships did not lay down that reasons ought to have been given, but what their Lordships said was that having regard to the facts and circumstances of that case they were satisfied that a prima facie case existed and that therefore that petition ought to have been admitted. We do not regard that judgment as laying down anything more than that. It certainly does not lay down the principle that an order of summary rejection which does not give reasons is illegal.

8. Another contention based upon the same decision was that the case should be remanded and we ought not to proceed to hear it on the merits. We do not think that any useful purpose will be served by a remand, even assuming that we do not think that the judgment of the learned Judge was correct. But in this case we have shown that the judgment was with respect, correct. This Court is equally competent to dispose of the petition on the merits as we have done. We are unable to accept any of the contentions in appeal. The appeal is dismissed with costs. Only one counsel in each set allowed. The amount deposited as security for costs may be withdrawn against the order for costs.

9. Appeal dismissed.


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