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Pralhad Lokram Dodeja and ors. Vs. the State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 670 of 1996 with Writ Petition Nos. 3620 and 3874 of 1998
Judge
Reported in2001(4)BomCR35; (2001)3BOMLR65
Acts Maharashtra Regional and Town Planning Act, 1966 - Sections 4, 6, 9, 23, 23(1), 26, 26(1), 37, 50, 125, 126, 126(2) and (3), 127, 128 and 128(1) and (3); Constitution of India - Articles 226; Land Acquisition Act, 1894 - Sections 5-A (1) and (2), 6, 11-A, 4(1), 12(1) and (2), 16, 17, 35, 36, 39, 40, 41, 42, 48 and 48(1) and (2); Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 - Sections 2(1), 3 and 62; Bangalore Development Act, 1976; Bombay Town Planning Act, 1955 - Sections 81 and 84; Karnataka Act, 1972; Calcutta Act, 1911; Uttar Pradesh Act, 1965; General Clauses Act - Sections 21; Land Acquisition (Company) Rules, 1963 - Rules 3 and 4; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 15 (2) - Order 19
AppellantPralhad Lokram Dodeja and ors.
RespondentThe State of Maharashtra and ors.
Appellant Advocate Mr. K.K. Singhavi, Senior Advocate , ;Mr. N.V. Walawalkar, ;Mr. G.H. Keluskar, ;Mr. M.L. Patil and ;Mr. R.D. Soni, Advs.
Respondent Advocate Mr. M.L. Patil, Adv., i/b ;Mr. R.A. Shaikh, ;Mr. C.J. Sawant, Special Counsel, ;Mr. V. M. Parshurami, Addl. Government Pleader, ;Mr. K.K. Singhavi, Senior Adv. , ;Mr. V.A. Thokat, Senior Advoc
DispositionPetition dismissed
Excerpt:
[a] maharashtra regional and town planning act, 1966 - section 37 - reservation of land - designated purpose - land reserved for bamboo trade and flea market - change in nomenclature in acquisition proceedings -acquisition for extension of market yard - both are public purposes - acquiring body same - procedure for modification not required to be followed.; the land acquisition officer has stated in his reply that there is only a change in the nomenclature in the acquisition proceedings where the acquisition is sought to be done for the extension of market yard whereas the designated purpose is that the land is reserved for bamboo trade and flea market. both these purposes are public purposes and the acquiring body is one and the same. the acquiring body has time and again at different.....h.l. gokhale, j.1. can proceedings for acquisition of land lawfully taken be challenged., by filing a writ petition after any number of years what should be the approach of the government and its ministers when an application for withdrawal of land from acquisition is made to the government? there are some of the important questions which arise in these three writ petitions.2. these three writ petitions bearing nos. 670/96. 3620/98 and 3874/ 98 arc concerning the acquisition of a large plot of land admeasuring 1 hectare 34 ares bearing survey no. 559/a2/b2 situated in bibwewadi area of pune city. these petitions have been heard together and are being decided together.3. writ petition no. 670 of 1996writ petition no. 670/96 is filed by one shri pralhad lokram dodeja and his brother.....
Judgment:

H.L. Gokhale, J.

1. Can proceedings for acquisition of land lawfully taken be challenged., by filing a writ petition after any number of years What should be the approach of the Government and its Ministers when an application for withdrawal of land from acquisition is made to the Government? There are some of the important questions which arise in these three writ petitions.

2. These three writ petitions bearing Nos. 670/96. 3620/98 and 3874/ 98 arc concerning the acquisition of a large plot of land admeasuring 1 Hectare 34 Ares bearing Survey No. 559/A2/B2 situated in Bibwewadi area of Pune City. These petitions have been heard together and are being decided together.

3. Writ Petition No. 670 of 1996

Writ Petition No. 670/96 is filed by one Shri Pralhad Lokram Dodeja and his brother Bansidhar Lokram Dodeja, both of whom owned this plot of land. The third petitioner is M/s Mutha Associates through its partner Shri Shantilal Mutha, who claims to have acquired the development rights over this land from Petitioners No. 1 and 2. The first four Respondents to this petition are the State of Maharashtra and its officers whereas the Respondent No. 5 is the Agriculture Produce Market Committee, Pune (hereinafter referred to as 'A.P.M.C.') constituted under the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (hereinafter referred to as the 'A.P.M.C. Act'). This plot of land has been acquired by the State of Maharashtra for the said A.P.M.C.. The Respondent No. 6 to this petition is the Pune Municipal Corporation which is the Planning Authority under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the 'M.R.T.P. Act'). This land had been acquired under the provisions of this M.R.T.P. Act read with Land Acquisition Act, 1894 [hereinafter referred to as the 'Acquisition Act').

4. Prayer (a) to this petition seeks to set aside the Notification dated 13th November, 1987 under section 126(2) of the M.R.T.P. Act (read with Section 6 of the Acquisition Act) issued by Special Land Acquisition Officer and published in the Government Gazette of 3.12.1987 declaring that the said land from Survey No. 559/2B part admeasuring approximately to 1 Hectare and 20 Ares is required for the benefit of the said A.P.M.C.. This prayer Includes the challenge to the subsequent communication from the Special Land Acquisition Officer dated 9.11.1989 informing the petitioners about the corrigendum to the said Notification published in the Government Gazette of 26.10.1989 clarifying that the area of the concerned parcel of land under acquisition was 1 Hectare and 34 Ares (and not 1 Hectare 20 Ares). Prayer (b) in this petition seeks to set aside the entire acquisition proceeding and the Award passed by the Special Land Acquisition Officer (XIV) dated 9th November, 1989. Prayer (c) in this petition seeks a direction to the Respondent Nos. 1 to 4 to delete the said property from reservation for the designated purpose of 'Bamboo Trade and Flea Market'. This petition came to be admitted on 15th April. 1996 and an interim order came to be passed In terms of prayer (e) thereof which seeks to restrain the Respondents from proceeding further with the acquisition of the said land and from interfering with and/or disturbing the vacant and peaceful possession of the Petitioners' In respect of the said land.

5. It is material to note that prior to the filing of this Writ Petition No. 670 of 1996, the Petitioners herein had filed a civil suit bearing Regular Civil Suit No. 2194/90 in the Court of Civil Judge, Senior Division, Pune concerning this very plot of land and seeking by and large this very protection and thereafter an Appeal from Order bearing No. 266/91 against the vacating of ad-interim injunction granted therein which appeal was pending in this Court. These Petitioners however subsequently filed this petition also for the reason amongst others that in the meanwhile the Apex Court had taken a view in another matter that a suit would not be a proper remedy to challenge the acquisition proceedings. When this petition was admitted, a statement was made by the counsel for the Petitioners that they will withdraw the said Appeal from Order as well as the suit from which the Appeal from Order had arisen, and the said statement was recorded while admitting this petition. This petition has been opposed by the Special Land Acquisition Officer (XIV) (who is respondent No. 2 herein) by filing a reply affirmed in March, 1996 and subsequently by the A.P.M.C. through its reply filed in September, 2000.

6. Writ Petition No. 3620 of 1098

It so happened that during the pendency of the above-referred Writ Petition No. 670 of 1996, the State Government passed an order withdrawing this plot of land from acquisition. That order was passed on 20th May, 1998 invoking the power of the Government under section 48 of the Acquisition Act. That order of withdrawal came to be challenged in Writ Petition No. 3620/98, which is filed by the said A.P.M.C., Pune on 19th June. 1998. This petition seeks to set aside the said order of withdrawal. The Respondent Nos. 1 to 3 to this petition are State of Maharashtra and its officers. The Respondent No. 4 is Shri Narayan Rane, the then Minister for Revenue who had passed the impugned order of withdrawal. The Respondent Nos. 5 and 6 are the above referred Pralhad and Bansidhar Dodeja. The Respondent No. 7 are M/s Mutha Associates. The Dodeja brothers and Mutha Associates are hereinafter referred to as the 'land owners/developers' respectively. This petition first came up for consideration on 21st July. 1998 when it was adjourned on the request of the Counsel appearing for the State Government and the counsel for the land owners/developers. The counsel for the land owners/developers made a statement on that date that pending admission, his clients will not create any third party rights in respect of the property in question.

7. Writ Petition No. 3874 of 1998

Sarvashri Rajendra Dnyaneshwar Khandwe, Satish Marutrao Kusmade and Chabanrao Waghmare, who claim to be agriculturists and sell their agricultural produce to the A.P.M.C.. Pune are persons interested in protecting the cause of the said A.P.M.C. As stated above, the concerned plot of land as withdrawn by the State Government from acquisition by its order passed on 20th May, 1998 and the A.P.M.C. had filed Writ Petition No.3620/98 on 19th June. 1998 to challenge the said order of withdrawal. On 6th July, 1998, the said A.P.M.C. was superseded by the State Government and an Administrator took charge of its affairs. The above referred S/Shri Rajendra Dnyaneshwar Khandwe and two others reliably learnt that the then Revenue Minister Shri Narayan Rane at the instance of M/s Mutha Associates, the land owners/developers, had prevailed upon the Administrator to withdraw the above Writ Petition No. 3620/98. Therefore on 27th July. 1998 S/Shri Rajendra Dnyaneshwar Khandwe and others filed Writ Petition No. 3874/98 which is the third writ petition. This petition also sought to challenge the order of withdrawal dated 20th May, 1998 and sought a stay thereof. Thereafter this petition sought an injunction restraining the A.P.M.C. from withdrawing its Writ Petition No. 3620/98. The State of Maharashtra was Joined as Respondent No. 1 to this petition, Shri Narayan Rane, Minister of Revenue was joined as Respondent No. 2, A.P.M.C. was joined as Respondent No. 3 and the above refereed land owners/ developers Nos. 4 to 6. This petition came up for admission before another Division Bench on 30th June. 1998 which admitted this petition after hearing the counsel for the State Government, the A.P.M.C. and the land owners/developers. It granted a stay of the order dated 20th May, 1998 passed by the Minister of Revenue. As recorded in its order, the Bench was of the opinion that this was a fit case where the A.P.M.C. should be directed not to withdraw its writ petition No. 3620/ 98. However, the then counsel appearing for the A.P.M.C. made a categorical statement that there was no question of withdrawing the said writ petition and hence such a direction was not passed.

8. Subsequently Writ Petition No. 3620/98 also came to be admitted in August 1998 and was directed to be heard with Writ Petition No. 3874/ 98. In Writ Petition No. 3620/98, a reply was filled first by the respondent No. 7 -land developers in July 1998 and then by a Desk Officer of the State Government from the Revenue Department on 22nd June. 2000 justifying the withdrawal of this land from acquisition. Thereafter an affidavit in rejoinder has been filed on behalf of A.P.M.C. and further affidavits are also filed by the land owners/developers in October 2000 and by Shri Narayan Rane in November. 2000. In Writ Petition No. 3874 of 1998 also Shri Narayan Rane has filed an affidavit In reply affirmed on 8th November, 2000 explaining his position. As stated earlier, all these petitions are concerning the same plot of land. Whereas Writ Petition No. 670/96 seeks in challenge the acquisition of this plot of land, the other two writ petitions. viz. Writ Petition Nos. 3620/98 and 3874/98, seek to challenge the withdrawal of the said land from acquisition. Hence all of them have been heard and are being decided together.

9. Prior Events

Now, when we look into the events prior to the filing of these petitions, it is seen that on 13th May. 1976, the Pune Municipal Corporation, which is the Planning Authority under the M.R.T.P. Act, issued a publication in the Official Gazette under section 23 of the said Act declaring its intention to revise and to prepare a revised Development Plan for Pune City and inviting suggestions and objections thereto. On an application being made by the A.P.M.C., Pune, this plot of land was reserved by the Director of Town Planning for the purpose of extension of market yard of the A.P.M.C. This plot was shown at Site No- M-145 on the revised Draft Development Plan of Pune dated 18th September 1982 which plan was subsequently published in the Official Gazette on 7th October, 1982 under section 26 of the M.R.T.P. Act. The land was continued under reservation for A.M.P.C. Thus the plan was now open for the persons concerned to communicate their suggestions or objections as provided under section 26(1) of the M.R.T.P. Act and thereafter for the due consideration of such suggestions or objections by the Planning Authority under section 28 of the said Act. Subsequently after considering all such suggestions and objections, the State Government sanctioned the revised Development Plan on 5th January, 1987 and it came to be published in the Official Gazette under section 31 of the M.R.T.P. Act on 29th January, 1987. In the sanctioned plan, this land continued to be reserved for the A.P.M.C., Pune, however, the designated purpose was changed to 'Bamboo Trade and Flea Market' in place of 'extension of A.P.M.C.'s market yard.' A.P.M.C. was declared to be the Appropriate Authority for acquiring and developing this parcel of land.

10. What is material to note is that although the declaration of intention to prepare the Development Plan was published in the Official Gazette (and also in local newspapers) as required under section 23 of the M.R.T.P. Act way back on 13th May, 1976 inviting suggestions or objections from the public, and although the revised Draft Development Plan was published under section 26 of the M.R.T.P. Act in, the Official Gazette on 7th October, 1982, to which also objections and suggestions could have been communicated as provided under section 26(1) of the M.R.T.P. Act, no suggestions or objections were raised by the land owners concerning this parcel of land at any point of time. The land developers; M/s. Mutha Associates came into picture on 8th March, 1984 when they took over the development rights on this land for payment of an earnest money of Rs. 50,000/-. They also did not lodge any objections or suggestions thereafter.

11. Consequent upon the sanction of the State Government granted under Section 31 of the M.R.T.P. Act on 5th January, 1987, the Commissioner of Pune Division issued a declaration on 13th November, 1987 under section 126(2) of the M.R.T.P. Act read with section 6 of the Acquisition Act declaring that this parcel of land was needed for the public purpose, namely extension of market yard. It was published in the Official Gazette on 3.12.1987. The Special Land Acquisition Officer (XIV) appointed for this purpose gave specific notices to Dodeja brothers and M/s Mutha Associates on 15th October, 1988. 31st December 1988. 11th April, 1989 and 21st April 1989, yet they did not choose to file any objections to the proposed acquisition. They however choose to make applications to the then Chief Minister on 11th September, 1989 and 13th October, 1989 requesting him to delete the said land from reservation. The Chief Minister is stated to have put a remark on the second application 'not to hasten'. The applications were made on two grounds, namely that the A.P.M.C. does not need this land since it otherwise had a large parcel of unutilised land and secondly that this land was surrounded by residential plots, and hence the reservation for the specified purpose was not justified. The applicants however accepted that the said land was near the market yard though it was claimed that it was not adjoining it. The Special Land Acquisition Officer proceeded to make his Award on 9th November, 1989. The A.P.M.C. deposited the amount required by the Land Acquisition Officer towards the cost of acquisition, namely Rs. 26,29,877/-, on 16.10.1990. The Government rejected the applications of the land owners/ developers by its letter dated 5th November, 1990. The Land Acquisition Officer issued a notice under section 12(2) of the Land Acquisition Act on 23rd November, 1990 for taking possession of the land. The notice was received by the land owners on 24th November, 1990 and the possession was to be taken on 26th November, 1990.

12. It is at this stage that the land owners/ developers started the process of litigation. They filed Regular Civil Suit No. 2194/90 in the Court of Civil Judge, Senior Division, Pune against the State of Maharashtra and the Land Acquisition Officer to challenge the Award, but did not join the A.P.M.C. as a party Defendant. The learned Civil Judge passed an order of status quo on 25th November, 1990 and extended it from time to time. The land owners subsequently applied for appointment of a Commissioner. The orders passed on these two applications subsequently led to Civil Revision Application No. 9/91 to this Court. A learned Judge of this Court at that stage on 7th February, 1991 directed the Trial Court to decide the application for Interim relief (Exhibit-5) without reference to the application for appointment of Commissioner (Exhibit-19). The learned Civil Judge thereafter rejected that application for interim relief. The land owners filed Civil Revision Application No. 218/91. That was converted to Appeal from Order No. 266/91. It was admitted and interim relief was granted in terms of prayer (c) thereof. Subsequently on Writ Petition No. 670/96 being filed, that writ petition was admitted on the land owners making a statement that Appeal from Order No. 266/91 as well as the suit will be withdrawn. The interim relief granted in Writ Petition No. 670/ 96 on 15th April 1996 has been running in favour of the land owners since then.

13. Shri R.D. Soni has appeared for the land owners and developers in Writ Petition No. 670/96. The land developers are represented by Shri Y. S. Jahagirdar in Writ Petition No. 3620/98 and by Shri S. C. Dharmadhikari in Writ Petition No. 3874/98 where they are Respondents. Shri K. K. Singhvi, Senior Advocate with Shri M.L. Patil have appeared for the A.P.M.C., Shri C.J. Sawant, Senior Advocate and Shri Parsurami, A.G.P. have appeared for the State Government and its officers and Shri V.A. Thorat, Senior Advocate with Shri G.S. Godbole have appeared for Shri Narayan Rane, the then Revenue Minister in all these three matters.

14. At this stage, we would like to record that submissions were made at the outset as to which petition ought to be heard first. Mr. Soni, learned counsel for the land owners in Writ Petition No. 670 of 1996 submitted that the other two petitions be heard first. He submitted that since the State Government had withdrawn the land from acquisition, the petitions challenging the withdrawal ought to be heard first. As against that Mr. Singhvi, learned Counsel for A.P.M.C., submitted that Writ Petition, No. 670 of 1996 was seeking to challenge the acquisition. If acquisition is held valid, then only question of withdrawal arises. In his view therefore that petition should be heard first. Mr. Sawant, learned counsel for the State Government, pointed out that though the State was defending the withdrawal by filing a reply, it was leaving it to the Court to pass appropriate order in that behalf. This being the position, we will first deal with Writ Petition No. 670/96 which challenges the acquisition of the concerned land and which petition is also prior in point of time. Thereafter we will deal with the other two writ petitions together namely Writ Petition Nos. 3620/98 and 3874/98, which are concerning the challenge to the withdrawal of the land from acquisition.

Writ Petition No. 670 of 1996

15. As far as Writ Petition No. 670/96 is concerned, it is firstly submitted therein that the acquisition should be for the specific designated purpose only and that the present acquisition is not for the designated purpose. In the instant case, the application of the A.P.M.C. to the Government specified its requirement as extension of market yard. On the other hand, the reservation specified in the final sanctioned Development Plan was 'Bamboo Trade and Flea Market. Thus the proposal of A.P.M.C- itself was bad being different from the designated purpose. Similarly the declaration issued under section 126(2) of the M.R.T.P. Act read with section 6 of the Acquisition Act mentioned the public purpose as extension of market yard. This is also different from the designated reservation, namely 'Bamboo Trade and Flea Market:'. This amounts to effecting a modification in the provision made in the final development plan and since the procedure for effecting this modification viz. the one under section 37 of the M.R.T.P. Act was not followed, the subsequent acquisition for the extension of market yard was also bad in law. Thus this Notification and the subsequent acquisition proceedings are all void ab initio and the Award made in the year 1989 is also bad in law.

16. Secondly it is submitted in the petition that for the acquisition to be valid, it must be for the benefit of an acquiring body which is capable of utilising the acquired land for the designated purpose. It is submitted that 'bamboo and fire wood' are not items or products regulated by the A.P.M.C. At least that was the position until the order of withdrawal of this land from acquisition was passed by the Revenue Minister on 20th May. 1998. This item was for the first time notified by the A.P.M.C., Pune as an item regulated by it by calling objections and suggestions on 19th February, 1999. This being the position, as the Market Committee itself was not eligible to trade and regulate these items, the question of acquiring the land for the benefit of A.P.M.C., Pune for this purpose did not arise at all. Section 2(1)(a) of the A.P.M.C. Act defines agricultural produce as all produce of agriculture (amongst others) as specified in the Schedule. The Schedule to the said Act contains a list of these agricultural produce. The power to amend this Schedule is with the State Government under Section 62 of the said Act. Under section G of the Act, marketing of scheduled agricultural produce in the market area is regulated by She A.P.M.C.. However, before that is done, the State Government has to Issue a notification under section 3 of the A.P.M.C. Act inviting suggestions and objections to the regulation of the particular agricultural produce in that area and after considering them it has to issue a regulatory notification under section 4 of the said Act. In the instant case, entries 5 and 6 under heading 'xv. Forest Produce' in the Schedule to the Act are 'bamboo and fire wood'. On 31st August, 1977, the Stale Government in exercise of its powers under section 62 deleted these entries from their coverage under agricultural produce. On 6th February, 1995 by a notification under the same section, these entries were again included. On 20th June, 1995, the State Government stayed operation of these entries. Thereafter this stay was vacated on 18th February. 1997. On 12.8.1998, the District Deputy Registrar of Co-operative Societies, Pune, issued the notification under section 3 of the A.P.M.C. Act proposing the regulation of bamboo and fire wood (amongst other produce) by the Pune A.P.M.C. and inviting objections. On 19.2.1999 he issued the notification under section 4 of the said Act declaring that A.P.M.C., Pune will regulate the trade in these produce in the Pune A.P.M.C. area. Thus, whereas on the one hand, these developments were taking place on the statutory and administrative level, the fact remains that as far as the A.P.M.C., Pune is concerned, these products were not notified for its regulation until 19th February, 1999. It is therefore submitted by the Petitioners that the A.P.M.C., Pune had no authority to trade into these products and the acquisition for such an acquiring body for that purpose was bad.

17. It is then contended in the petition that the A.M.P.C., Pune was in possession of huge chunk of land which was lying unused and that the said A.P.M.C. was not in need of any additional land for the alleged purpose of extension of market yard as claimed. It is further submitted that though the then Chief Minister had directed the Land Acquisition Officer not to hasten, yet he had proceeded further disregarding the order of the Chief Minister. The Petitioners had expected that the acquisition proceeding will not proceed further and yet the same was proceeded without hearing the Petitioners thereafter and this is in breach of principles of natural justice. It is further submitted in this behalf that whereas the purpose of acquisition must survive until the possession of the concerned land is taken under section 16 of the Acquisition Act, in the instant case, the purpose for which acquisition proceedings are initialed is itself different from the purpose designated in the sanctioned plan. In view of this situation and inasmuch as the land continued to be in the possession of the petitioners, the petitioners expected the State Government to exercise its power under section 48(1) of the Acquisition Act and withdraw this land from acquisition. Thereafter it is submitted that the area under reservation/acquisition was increased only by Issuing a notification/ corrigendum. Increase in the area amounted to a minor modification and that the same has been done without following the due procedure provided under section 37 of the M.R.T.P. Act and hence the entire acquisition was bad in law.

18. Reply of the Special Land Acquisition Officer

The Special Land Acquisition Officer No. 14, who is Respondent No. 2 herein, opposing this petition by filing the reply in March 1996. In his reply, Respondent No. 2 placed on record that proper opportunity was given to the petitioners to submit their claims with respect to compensation as also their objections, if any, regarding the measurements and the area of land under acquisition. It is relevant to note that no such claims or objections were filed before him by any of the petitioners. With respect to the instructions to his office from the then Chief Minister on petitioners' application dated 13th October, 1989, the 2nd Respondent pointed out that until the Award in this case was declared on 9th November, 1989, no stay order was received either from the Government or from any other Authority. He, however, accepts that such instructions were received subsequently and specifically states that 'It is to state that the issue about the instructions by the Government is purely an administrative matter between the Government and the various departments and the petitioners are not concerned with it.' He further states that it was obligatory on his part to declare the Award within the period of 2 years from the date of publication of the notice under section 6 of the Acquisition Act. The notice under section 6 was issued on 13.11.1987 and published on 3.12.1987 in the Official Gazette and the Award was made on 9th November, 1989.

19. The petitioners have submitted that increase in the area of the land under Acquisition amounts to a modification and unless the procedure under section 37 of the M.R.T.P. Act is followed, the same cannot be done. Respondent No. 2 has stated in this behalf that the area of the land under any particular reservation, as mentioned in the development plan, is only an approximate area. This is because when the development plan is prepared by the Planning Authority, no measurement plan of the land under reservation is made or consulted at that stage. It is only at the stage of the acquisition that the joint measurement plan is prepared and the area is accurately worked out by the land record department. It is at that stage that the concerned area was found to be 1 Hectare and 34 Ares and, therefore, the corrigendum notification had become necessary. With respect to the petitioners' submission that the acquisition was for a purpose other than the designated purpose. Respondent No. 2 has stated that there is only a slight change in the nomenclature of the land under acquisition i.e. extension of market yard as against the nomenclature stated in the development plan i.e. bamboo trade and flea market. He has further emphasised that both these purposes are public purposes and the acquiring body for both these purposes is one and the same viz. A.P.M.C., Pune and hence the acquisition proceedings cannot be vitiated on that ground. The Acquisition Officer has thereafter denied the allegations of malafides as contained in the petition.

20. Reply of the A.M.P.C.

One Shri Vijay Choukar. Secretary of the A.P.M.C., Pune, has filed a reply on its behalf, which is affirmed on 5th September, 2000. He has submitted that the petition suffers from serious laches and unconscionable delay. He has pointed out that neither at the stage of reservation of the concerned land under the development plan nor at the stage of its acquisition have the petitioners lodged any objections. The disputed land was placed under reservation in the year 1976. The revised draft development plan was published in October 1982 and the disputed land was reserved for the purposes of A.M.P.C.. As per the revenue record, the land was in the name of petitioner Nos. 1 and 2 and their father (who subsequently expired). They did not choose to file any objection. No objections were filed when the declaration was issued under section 126(2)of the M.R.T.P. Act read with section 6 of the Acquisition Act. Individual notices were issued to petitioner Nos. 1 and 2 as also to petitioner No. 3 since he had entered into an agreement of purchase with petitioner Nos. 1 and 2 in the meanwhile. These notices issued under section 9 of the Acquisition Act were also not replied. The petitioners allowed the acquisition proceedings to be completed. After the Award was made, the A.P.M.C. deposited the required amount. It is only at that stage when possession was to be taken that the Petitioners filed a civil suit on 25.11.1990 and took an ad-Interim injunction.

21. It is then placed on record that one Shri Sharad Joshi who claims to be a leader of farmers filed different petitions in this Court from January 1991 onwards to restrain A.P.M.C.. Pune, from taking possession of any place of land. He initially filed Writ Petition No. 349 of 1991 and then Writ Petition Nos. 2497 to 2499 of 1991. All these petitions were withdrawn. Another writ petition viz. Writ Petition No. 2500 of 1991 towards the same purpose was also not entertained. Thereafter the present writ petition has been filed in January, 1996 contending amongst other submissions that the same was filed since the suit would not be maintainable in view of a recent judgment of the Apex Court. In this connection, it is relevant to note that a civil application had been moved by this Shri Sharad Joshi to intervene in the present matter. On a query to Shri Aney, learned Counsel appearing for Shri Sharad Joshi, as to whether he was supporting or opposing the A.P.M.C., he accepted that the civil application was to support the land owners/developers. We were of the view that the petitioners were sufficiently equipped to lake care of their interest and such an Intervention need not be permitted and hence the civil application was rejected by a separate speaking order.

22. Thereafter it is stated in the reply of Shri Choukar of A.P.M.C. that the notification challenged in this petition was issued way back in the year 1987 and nearly 9 years had gone thereafter. The representation of the land-owners was rejected by the Government on 5.11.1990 and more than 5 years had gone thereafter also by the time this petition was filed. It is, therefore, submitted that such petitioners, who did not lodge any objections at any stage earlier, cannot be permitted to raise this issue after gross delay and laches. Thereafter it is submitted that the petition is incomplete, lacks in bonafides and is a speculative one. This is because whereas the market value of the concerned land as per the Award is over Rs. 26 Lacs, the 3rd petitioner has paid only an amount of Rs. 50,000/ as earnest money to buy this land and is now raising this litigation. Thereafter it is pointed out in the reply that the land is required for settlement of the Burud community. They are people belonging to a weaker section of the society. They were earlier running their business in Burud Aali in Ganesh Peth area of Pune. There was a fire in or about 1957 wherein the persons from this community suffered. They have therefore made representations for their rehabilitation and one such representation made by Smt. Subhadrabai Pawar and others on behalf of Savitribai Phule Burud Samaj Association is enclosed with the reply. The representation points out that their community is extremely backward and an uneducated one and in the fire of 1956 in the Ganesh Peth area, the Burud community has suffered. Their residence and occupation had become extremely difficult and is at the mercy of the Municipal Authorities. They are, therefore, in urgent, need of space for carrying on their trade.

23. Thereafter it is submitted in this reply that when the A.P.M.C. Act came into force, bamboo and fire wood were initially included in the Schedule to the Act. These en tries were subsequently deleted on 31.8.1977 but were again brought back on 6.2.1995 but the regulation there of was stayed. Now, the stay has been vacated on 18th February. 1997 and from 19th February, 1999 onwards, the A.P.M.C. has been notified to trade into these products. The reply encloses therewith the necessary notifications.

24. It is thereafter pointed out in the reply that A.P.M.C. was established in the year 1956 to eliminate mat-practices prevailing in the wholesale marketing of the agricultural products to safeguard the interest of the agriculturists. The markets in the city which were at different places were shifted to the market yard in the year 1980. The increase in the trade is thereafter demonstrated from the following relevant figures for the years 1980 and 1999 :-

Sr. No. Items19801999

(1)Volume of TradeRs.300 CroresRs.972 Crores(2)Licence Holders900011000(3)Number of Shops7002000(4)Daily vehicular traffic10008000(5)Persons using market daily500050000

25. Thereafter it is pointed out that although the activities of the market yard have increased repidly, because of the insufficiency of the land some of the markets such as bamboo and fire wood, fodder and betel leaves could not be shifted to the market yard and additional land is acutely required. The reply encloses therewith the chart showing the turnover for the years 1980 and 1998-99, which shows the rise from about Rs. 300 Crores to nearly Rs. 972 Crores. Thereafter it is denied in the reply that there is any change as such in the purpose of reservation or that the alleged change amounts to any prior modification.

26. Submissions on behalf of the Land-owners/Developers

Mr. Soni, learned Counsel appearing for the petitioners, pressed two submissions into service as recorded earlier. Firstly, he contended that the acquisition was not being done for the designated purpose and secondly, that acquiring body viz. A.P.M.C. had no authority to deal in the particular activity. The submission of Mr. Soni was that whereas the purpose specified for which the land was reserved in the development plan was bamboo trade and flea market, the land was being acquired for extension of market yard. He submitted that these are two different purposes and unless the development plan itself was amended by the procedure under section 37 of the M.R.T.P. Act, the acquisition could not be valid. Mr. Soni relied upon two judgments of two Division Benches of this Court in this behalf. Firstly he relied upon a judgment of a Division Bench in the case of Sirur Municipal Council v. State of Maharashtra,. In that matter inspite of the site having been reserved for municipal industrial estate in the final development plan, the Administrator of the Municipality gave no objection to set up private industries and that was done without following the necessary procedure under section 37. Similarly in the case of Harijan Layout Sudhar Samiti v. State of Maharashtra, the concerned area was earmarked as green belt in the development plan. It was subsequently sought to be converted into one for housing purpose without following the procedure required under section 37 of the M.R.T.P. Act. In both these matters, the Division Bench held that the provisions of section 37 had to be followed before any such modification could be effected. Since the same had not been done, both these departures from the planned purpose were set aside. Mr. Soni submits that in the present case, the similar approach is necessary. He then relied upon the judgment of the Apex Court in the case of Bangalore Medical Trust v. B.S. Muddappa,. In that matter, the land reserved for a public park had been converted into a private nursing home and the same had been interfered. It was held in that matter that under the provisions of Bangalore Development Act, 1976, there was no power to permit such conversion.

27. Mr. Soni then submitted that until 19th February 1999. A.P.M.C.. Pune, had no authority to deal in bamboo trade and fire wood. Thus, on the date on which the concerned land was reserved and all throughout and even until it was withdrawn from acquisition on 20th May 1998, the A.P.M.C. had no authority to deal into these items. He submitted that an acquisition for the benefit of an acquiring body ought to be capable of being utilised. In the instant case, that was not so and hence the acquisition had to be interfered. Mr. Soni also pressed into service the above referred subsequent development of withdrawal of the land from acquisition which order was passed on 20th May. 1998 which is subsequent to the filing of the present petition in January 1996. The submission of Mr. Soni was that though this was a subsequent event, it clearly vindicated the stand of the petitioners that the acquisition was bad. The petitioners had, therefore, made the prayer for deletion from reservation and it ought to be granted.

28. Submissions on behalf of the A.P.M.C.

Mr. Singhavi, learned Senior Advocate appearing for A.P.M.C.. submitted that none of these submissions canvassed on behalf of the petitioners had any merit. The first challenge raised by Mr. Soni was that the acquisition had to be for the designated purpose only. With respect to this submission, Mr. Singhavi submitted that although the acquisition proceedings stated that the land was being acquired for extension of the market yard, there was no basic contradiction between that purpose and the nomenclature used in the development plan viz. bamboo trade and flea market. This is because the A.P.M.C. needed this particular parcel of land for setting up of bamboo trade and flea market only. The A.P.M.C. had specifically stated in its affidavit in reply that the land was required for rehabilitation of the Burud community by setting up of this bamboo trade and flea market. He adopted the submission of the Special Land Acquisition Officer, who in his reply, had stated that both these purposes were public purposes and that the acquiring body was also one and the same and that there was only a slight change in the nomenclature. Mr. Singhavi submitted that when the land is reserved for a particular purpose in the plan then the public purpose continues, and it lapses only when the land is not acquired within 10 years from the date on which the final plan comes into force and the land is not acquired within 6 months after service of a notice by the land owner in that behalf. He relied upon Section 127 of the M.R.T.P. Act in this behalf which reads as follows :-

'Sec. 127. Lapsing of reservations

If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may served notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan.'

Mr. Singhavi, therefore, submitted that it was certainly permissible for the A.P.M.C. to use the land for that designated purpose which is what it is now proposing to do. After the amendment in the Schedule to the Act and after lifting of the stay, the necessary procedure under sections 3 and 4 of the A.P.M.C. Act had been followed and the bye-laws are also amended. Thus, there is no question of lack of any competence on the part of A.P.M.C. in this behalf. This was with respect to the second submission of Mr. Soni that the A.P.M.C. was not capable of utilising the land for the designated purpose.

29. Mr. Singhavi then submitted that it was always permissible for the Government to change the designated purpose if the Government was satisfied that the land Is needed for a public purpose different from a public purpose designated by the Planning Authority. That power was reserved in the State under section 128 of the M.R.T.P. Act. The submission was that assuming that this was a change from the purpose designated in the plan, the same was permissible. Section 128(1) of the M.R.T.P. Act, which is relevant in this behalf reads as follows :-

'Power of State Government to acquire lands for purpose other than the one for which it is designated in any plan or scheme.

Where any land is included in (any plan or scheme] as being reserved, allotted or designated for any purpose therein specified or for the purpose of Planning Authority or Development Authority or Appropriate Authority and the State Government is satisfied that the same land is needed for a public purpose different from any such public purpose or purpose of the Planning Authority, Development Authority or Appropriate Authority, the State Government may notwithstanding anything contained in this Act, acquire such land under the provisions of the Land Acquisition Act, 1894'.

30. Mr. Singhavi then referred us to two recent judgments of the Apex Court. Firstly, he referred to the judgment of the Apex Court in the case of State of Tamil Nadu and others v. L. Krishnan and others,. In that matter in the context of Tamil Nadu State Housing Board Act, 1961, the Apex Court had held that framing and publishing of a scheme under the Housing Board Act was not a pre-condition for issuance of a notification under section 4(1) of the Acquisition Act. In that matter, the housing schemes were initiated prior to issuance of section 4(1) notification but were finalised thereafter. It was specifically submitted on behalf of the State of Tamil Nadu that it was not necessary that there should be a final and effective scheme prepared under the Housing Board Act before the lands are acquired ' for the purposes of the housing scheme. The land can be acquired even where there is no final and effective housing scheme on the date of the notification. This notification had been specifically opposed on behalf of the writ petitioners. As can be seen from paragraphs 4 and 5 of that Judgment it was canvassed on behalf of the writ petitioners that no notification under section 4 of the Acquisition Act could be issued unless a scheme is first prepared in accordance with the Housing Board Act. The Apex Court has gone into the scheme of the said Act and particularly sections 35 and 36 thereof and negatived the contentions advanced on behalf of the writ petitioners.

31. Mr. Singhavi then relied upon another judgment of the Apex Court in the case of Municipal Corporation of Greater Bombay v. I.D.I. Co. Pvt. Ltd.,. In that matter the concerned land which was reserved for extension of Dharavi Sewage Purification Plant under section 126 of the M.R.T.P. Act was subsequently sought to be utilised for the residential and commercial purposes as approved under the B.M.R.D.A. Act. In that, context, in paragraph 22 the Court observed as follows :-

'It is thus well-settled legal position that the land acquired for a public purpose may be used for another public purpose on account of change or surplus thereof. The acquisition validly made does not become invalid by change of the user or change of the user in the scheme as per the approved plan. ..... It would not, therefore, be necessary that the original public purpose should continue to exist till the award was made and possession taken. Nor is it the duty of the Land Acquisition Officer to see whether the pubic purpose continues to subsist. The award and possession taken do not become invalid or ultra vires the power of the Land Acquisition Officer.'

The submission of Mr. Singhavi was, therefore, that as such factually there was contradiction between the purpose designated in the plan and the one specified in the acquisition proceeding and that the A.P.M.C. was competent to deal and trade in the particular items and intended to use the land for that very purpose. However, assuming that there was any change, that was fully permissible in law as can be seen from the provision of section 128(1) of the M.R.T.P. Act quoted above and the recent trend as seen in the judgments cited above.

32. Mr. Soni had submitted that the A.P.M.C. did not have the authority to deal in the particular activity viz. bamboo trade and flea market on the date on which the land was reserved for that purpose until the land was withdrawn from acquisition on 20th May, 19'98 and thereafter until 19th February, 1999. In this behalf, Mr. Singhavi pointed out that bamboo and fire-wood was originally included in the Schedule to the Maharashtra Agricultural Produce Marketing (Regulation) Act. 1963 as items to be controlled by the A.P.M.C. under the Act, They were, however, deleted by notification dated 31st August. 1977 but were subsequently brought back by the Government Notification dated 6th February. 1995. Thereafter there was stay imposed by the Government on the A.P.M.C. acting thereon for sometime but that was lifted on 18th February. 1997. In any event, thereafter all necessary formalities were completed by following the procedure under Sections 3 and 4 of the said Act and the bye-laws were also amended and the A.P.M.C. was capable of dealing in those items from 19th February, 1999. In this behalf, Mr. Singhavi drew our attention to the approach of the Apex Court again in the case of State of Tamil Nadu v. L.Krishnan (supra) and in the case of Municipal Corporation of Greater Bombay v. I.D.I. Co., As held by the Apex Court in the case of State of Tamil Nadu. a. L.Krishnan (supra), it was not Impermissible for the Stale to take steps in advance for acquiring the land for the public purpose by following the law and hence there was no substance in the said submission.

33. Delay and Laches :

That apart, Mr. Singhavi strongly objected to the entertaining of this petition on the ground of gross delay and laches. He submitted that neither at any stage of planning and reservation of the land nor at any stage of the acquisition proceedings had the petitioners lodged any objections. He submitted that the intention to revise the plan was notified by issuing the necessary publication under section 23 of the M.R.T.P. Act on 13th May, 1976. The petitioners could have lodged their objections under section 23(1) of the Act, but they did not. The draft development plan was published on 7th October 1982 under Section 26 of the Act and this particular land was reserved for A.P.M.C.. The petitioners could have objected under section 26(1) of the Act again they did not. The plan was sanctioned by the State Government on 5th January, 1987 and it was published in the Official Gazette on 29.1.1987. Thereafter the declaration under Section 126(2) of the M.R.T.P. Act read with section 6 of the Land Acquisition Act was made on 13.11.1987, and published on 3.12.1987. Specific personal notices were given first to the petitioners and then to the developer viz. M/s Mutha Associates (Petitioner No. 3 herein) as required under section 9 of the Acquisition Acton 15.10.1988, 13.12.1988. 11.4.1989 and 21.4.1989. Yet no objections were filed. It is only when the notice to take possession was served on 24.11.1990 that the petitioners filed the civil suit.

34. The present writ petition was filed on 30th of January, 1996 by submitting that in view of a recent judgment of the Apex Court a civil suit would not be a proper remedy. Mr. Singhavi, however, referred us to a copy of the plaint of the civil suit and pointed out that in the suit there is only a challenge to the Award. There is no challenge to the notification issued under section 126(2) of the M.R.T.P. Act read with section 6 of the Acquisition Act. That notification had been Issued was back on 13th November, 1987 and was being challenged for the first time through prayer (a) of this petition filed in January, 1996. Mr. Singhavi pointed out that there was no challenge whatsoever to this notification in the suit and that was not being raised in this petition filed 8 years after the issuance of the notification. The Award has been made on 9.11.1989 and thereafter also clear 6 years had gone prior to the filing of the petition. Mr. Singhavi submitted that no explanation had been given for the delay in filing of this petition though this ground has been specifically raised in the affidavit in reply filed by the A.P.M.C.. Mr. Singhavi submitted that there could be no challenge either to section 4 or section 6 notification or to the notification under section 126(2) of the M.R.T.P. Act after the Award, the petition suffered from gross delay and laches and after the lapse of so many years, the acquisition could not be interfered even though the possession remained with the petitioners in view of the ad-interim injunction granted initially by the Civil Court and the interim relief restraining the respondents from, disturbing petitioners' possession granted at the admission stage by the previous Division Bench dealing with the matter at that time.

35. Mr. Singhvi pointed out that the challenge to the notification under section 126(2) of the M.R.T.P. Act read with section 6 of the Acquisition Act has been taken for the first time in this writ petition which is filed more than 8 years thereafter. Mr. Singhavi referred us to paragraph 40 of the above-referred judgment in the case of State of Tamil Nadu v. L. Krishnan (supra) once again. As that paragraph records, the declaration under section 6 in that matter has been made in the year 1978 and the writ petitions were filed some-time in the year 1982-83 i.e. about 4 years thereafter when the Awards were about to be passed, yet the Apex Court held that the laches of this nature are fatal. The Apex Court relied upon the judgment of the Constitution Bench in the case of Aflatoon v. Lt. Governor of Delhi,. In that matter, the appellants claimed to be prejudicated by the non-specification of the public purpose. Therein also the petition was filed nearly 4 years after the declaration under section 6 when the notices under section 9 were issued to them. A Constitution Bench laid down that the appellants ought to have taken the steps to have the notification quashed on that ground within a reasonable time at-least after the declaration was made under section 6 of the Act. The relevant observations from the Judgment in Aflatoon (supra) are as follows :-

'Assuming for the moment that the public purpose was not sufficiently specified in the notification, did the appellants make a grievance of it at the appropriate time? If the appellants had really been prejudicated by the non-specification of the public purpose for which the plots in which they were interested were needed, they should have taken steps to have the notification quashed on that ground within a reasonable time. They did not move in the matter even after the declaration under Section 6 was published in 1966. They approached the High Court with their writ petitions only in 1970 when the notices under Section 9 were issued to them.

Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea in view of their conduct in not challenging the validity of the notification even after the publication of the declaration under Section 6 in 1966. Of the two writ petitions, one is filed by one of the appellants. There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that particulars of the public purpose were not specified. A valid notification under Section 4 is sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attach the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners (see Tilokchand Motichand v. H.B. Munshi and Rabindranath Bose v. Union of India).'

36. Mr. Singhavi then referred us to the observations on delay in the above-refer red case of Municipal Council of Greater Mumbai v. I.D.I. Co. (supra). In that matter, the writ petitioners had approached the High Court after a delay of 4 years, that too after the Award was made and possession was taken from the owner. Incidentally, in that matter a notification under section 126 of the M.R.T.P. Act was in question along with a declaration under section 6 of the Acquisition Act namely that the concerned land is needed for a public purpose. There also the Apex Court has observed that the interested person has to be vigilant and has to challenge a notification under section 126 before the acquisition becomes final. At the end of paragraph 15 and later on in paragraph 19, the Court observed as follows :-

'It would, therefore, be necessary for the interested person to be vigilant and watchful to impugn such notification under Section 126 in the High Court under Article 226 before the acquisition becomes final and conclusive under Section 12(1) of the Act between the Collector (Land Acquisition Officer) and the interested person whether or not he appeared or represented before him and the lands stand vested in the State under Section 16 or 17 free from all encumbrances. .....

It would be no function of the Collector (Land Acquisition Officer) to keep inquiring whether the notified public purpose remains in existence. His duty and authority is to pass award under Section 11 after following the procedure under Sections 9 and 10; file the award in the office of the Collector under Section 12(1); issue notice to all interested persons under Section 12(2); pay compensation under Section 31 or deposit it in the Court and to make reference, if the application under section 18 was filed as per law and this binds his authorities. Therefore, the validity of the notification under Section 126 of the M.R.T.P. Act or declaration under Section 6 of the Act needs necessarily to be impugned by interested persons and have it quashed before the award proceedings become final and conclusive under Section 12(1).'

Thereafter the Court observed in Para 29 of that judgment as follows:-

'It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has. no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that the third party rights were created in the case is hardly a ground for interference.'

37. In the matter of I.D.I. Co, the petition had been filed after possession was taken, whereas in the present case, possession still continues with the petitioners. Mr. Singhavi, therefore, referred us to a Judgment of the Apex Court where the Apex Court ruled that holding of the possession by the party concerned was irrelevant. That was in the case of Ramjas Foundation v. Union of India,. In that matter, if we refer to Para 13 of the judgment, it was canvassed on behalf of the appellants that they continued in possession although section 4 notification was issued in 1959, section 6 in 1968 and 1969, the notices under sections 9 and 10 were issued in 1972 and the petitions were filed in 1973. The Court observed in Para 14 that in such matters the challenge is essentially in respect of notifications under sections 4 and 6 of the Act. Later on in Para 14, the Court observed as follows:

'We find no justification at all in explaining the delay on the ground that no award has been passed nor the appellants have been dispossessed so far. This cannot be an explanation for not challenging the notification under Sections 4 and 6 of the Act and in the present case the appellants had themselves sought stay from this Court as early as 15.11.1978 for not making and declaring the award and not to dispossess the appellants. Thus we find no justification at all for the delay in not challenging the notification issued under Section 4 on 13.11.1959 till 1973. Even notifications under Section 6 of the Act were issued, in 1968 and 1969 but not challenged till, 1973.'

38. Mr. Singhavi then referred us to two recent judgments of the Apex Court. Firstly in the case of Larsen & Toubro Ltd. v. State of Gujarat, in para 21 of that judgment, the Court has observed as follows:-

This Court has repeatedly held that writ petition challenging the notifications issued under Sections 4 and 6 of the Act is liable to be dismissed on the ground of delay and lunches if challenge is not made within a reasonable time. This Court has said that the petitioner cannot sit on the fence and allow the State to complete the acquisition proceedings on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notifications on the grounds which were available to him at the time when these were published as otherwise it would be putting a premium on dilatory tactics.'

Secondly. Mr. Singhavi referred us to the judgment of the Apex Court in the case of Municipal Council, Ahmednagar v. Shah Hyder Beig,. In that matter, S.L.P. was allowed only on the ground of delay in filing the writ petition. The notification under Section 126 of the M.R.T.P. Act read with section 6 Of the Acquisition Act was issued in the year 1971. The Award was published and possession was taken in 1976. The petition was filed in 1992. In Para 14 of its judgment the Apex Court observed that equity favours a vigilant rather than an indolent litigant and allowed the S.L.P.

39. Submissions on behalf of the State Government:

Mr. Sawant, learned Senior Counsel and Mr. Parsurami, Assistant Government Pleader appeared for Respondent Nos. 1 to 4 i.e. State of Maharashtra, Special ' Land Acquisition Officer and other officers of the State. Mr. Sawant reiterated the stand taken by the Special Land Acquisition Officer in his reply and adopted the submissions canvassed by Mr. Singhavi, learned Counsel appearing for A.P.M.C., with respect to the Petitioners' grievance that the present acquisition was not followed for the designated purpose or that the acquiring body did not have the capacity to deal in the purpose for which the land was reserved. Mr. Sawant referred us to the averments from the plaint as well as from the writ petition to point out that the petitioners clearly understood that though the acquisition of the land was for extension of the market yard, the A.P.M.C. was very much going to use the land for the purpose for which it was reserved in the development plan viz, for bamboo trade and flea market. Mr. Sawant, therefore, submitted that the petitioners clearly understood what was being done and there was no confusion nor was there any occasion for anybody being misled or the A.P.M.C. utilising this land for some other purpose. In any case from the stand taken by A.P.M.C. all throughout this position was clear. He also submitted that from February, 1999 all necessary formalities had been completed and the A.P.M.C. had full authority to regulate the trade in bamboo and flea market. With respect to the alleged increase in the area, Mr. Sawant repeated what is stated in the affidavit in reply of the Land Acquisition Officer namely that at the stage of reservation in the development plan it is only the approximate area which is mentioned since no measurement of the land under reservation is made at that time. It is only at the stage of acquisition that the land is actually measured and if it is found that some correction is required, the corrigendum is brought out. That apart, Mr. Sawant submitted that basically these grievances are to be taken at the relevant time, before the appropriate Officers, thus initially before the Planning Authority at the stage when the lands get reserved in the planning process and later on before the Land Acquisition Officer. In the present matter, the planning process started way back in the year 1976 and the draft development plan was published in October 1982. At-least at that stage the petitioners could have communicated their objections to the reservation or subsequently when the land was notified for acquisition. Neither at the stage of declaration under section 6 of the Acquisition Act nor when individual notices were sent under Section 9 thereof to the petitioners including M/s Mutha Associates were any objections filed by any one of them. Section 6 declaration was made way back in November 1987 and the notices under section 9 were issued in October, 1988 to April 1989. The Land Acquisition Officer therefore had no option but to complete the acquisition proceedings within the necessary time. He submitted that the Award was valid one and the petition is obviously bad for gross delay and laches.

40. Mr. Soni, learned Counsel appearing for the petitioners in submitting in rejoinder that the initiation, continuation and the culmination of the entire acquisition proceedings was itself void and therefore it could not be said that there was any delay. In his submission the judgments relied upon by Mr. Singhavi on the question of delay would not apply to the facts of the present case since in his submission the question of direct inability of the acquiring body or the purpose of acquisition being different than reservation were not the issues in those Judgments.

41. Conclusions :

We have considered the submissions made by the Counsel for the petitioners as well as by the respondents carefully. As far as the first submission of Mr. Soni that the present acquisition was not for the designated purpose, we are not impressed by the same at all. The Land Acquisition Officer has stated in his reply that there is only a change in the nomenclature in the acquisition proceedings where the acquisition is sought to be done for the extension of market yard whereas the designated purpose is that the land is reserved for bamboo trade and flea market. Both these purposes are public purposes and the acquiring body is one and the same. The acquiring body has time and again in different places stated that it was being to utilise this land for bamboo trade and flea market only. In fact as pointed out by Mr. Sawant, learned Counsel appearing for respondent Nos. 1 to 4, the petitioners had also clearly understood that and they are only trying to take advantage of the difference in the momenclature. Thus in the petition itself in Para 3 the petitioners have specifically averred as follows :-

'The petitioners thus state the additional land was sought for by the respondent No. 3 to extend the market yard to enable them to accommodatethe activities of bamboo trade which was incorporated in entries 5 and 6 under the heading No. XV - forest products in the Schedule to the said Act.

Thus, there is no contradiction herein nor is there any allegation of the petitioners that A.P.M.C. Is going to utilise this land for a purpose other than bamboo trade and flea market. That being so, there is no substance whatsoever in this grievance or that for this alleged change the procedure for modification under section 37 was required to be followed. The reliance by Mr. Soni on the two judgments of this Court as also a judgment of the Apex Court in this behalf is totally misconceived. In Shirur Municipal Council's case (supra) the land reserved for municipal industrial estate was being permitted to be utilised to set up private industries. In the case of Harjian Lay Out Samiti case (supra), the land earmarked for green belt was to be utilised for housing society. It was in the context of these satiations that this Court has held that the provisions of section 37 were mandatory. Similar are the facts of Bangalore Medical Trust case (supra) where the land reserved for public park was to be utilised for the private nursing home. These modifications could not be permitted except of due process of law. In our case, firstly, acquiring body is one and the same. It has repeated time and again that it is going to use the land for designated purpose only. That is all throughout clear to the petitioners also and it is not their case also that the land will be used for any other purpose. That being the position, on facts, there is no occasion, for the particular grievance being made. But in any case, as pointed out by Mr. Singhavi and as observed by the Apex Court in the case of Municipal Corporation of Greater Bombay v. I.D.I. (supra), the land acquired for one public purpose may be used for another public purpose. That is also seen from the approach of the Apex Court in the judgment of State of Tamil Nadu v. L. Krishnan (supra), Hence, the first submission of Mr. Soni is devoid of any substance and is rejected.

42. The second submission of Mr. Soni was that the A.P.M.C. did not have the capacity to deal in bamboo trade and flea market in any case at the time of the acquisition and until the land was released from the acquisition by the order passed by the Minister in May 1998. Now it has clearly come on record that all necessary formalities under sections 3 and 4 of the A.P.M.C. Act have been completed and the bye-laws have been amended and from February, 1999 the A.P.M.C. Is fully capable of dealing in these products. In the intervening period many administrative developments had taken place for which the A.P.M.C. Is not responsible viz. deletion of these items from their coverage under the A.P.M.C. Act and subsequent inclusion etc. The reservation of the land for the designated purpose has continued all throughout and it has not lapsed. It can happen only after the procedure under section 127 of the M.R.T.P. Act is followed. So long as the reservation subsists the acquiring body can certainly utilise the land for designated purpose, once the necessary formalities are completed. As held by the Apex Court in the case of State of Tamil Nadu v. L. Krishnan (supra), it was not impermissible for the State to take steps in advance for acquiring the land for the public purpose by following the law. That having been done this objection can no longer be sustained.

43. That apart, the gross delay and laches are most fatal to this petition. The planning process started in the year 1976. The draft development plan dated 18.9.1982 was published on 7th October, 1982 under which this particular parcel of land was reserved in favour of the A.P.M.C. for extension of market yard. It was permissible to the petitioners to lodge their objections under section 26 of the M.R.T.P. Act. Subsequently the plan was sanctioned and published in the Official Gazettee on 29.1.1987 though with one change that the designated purpose was to be bamboo trade and flea market. Thereafter when the process of acquisition started, the declaration under Section 126(2) of the M.R.T.P. Act read with section 6 of the Land Acquisition Act was made on 13th of November, 1987. Not only that but specific notices to the land owners as well as to the developers were issued on 15.10.1988 and 31.12.1988. On 15.10.1988 it was submitted by the first two petitioners that they needed time in view of the death of their father on 13.10.1988 and hence on their request the proceedings for acquisition were adjourned to 14.11.1988. On 14.11.1988 no claim was filed and yet by the notice dated 31.12.1988 the proceedings were further adjourned and the time to file the claim was extended to 5.1.1989. On coming to know that M/s Mutha Associates had an interest in the land a specific notice was given to Shri Shantilal Mutha of M/s Mutha Associates on 11.4.1989 to lodge the claim if any by 19.4.1989. Again, on the application given by Mutha Associates dated 19.4.1989, the Land Acquisition Officer adjourned the proceedings on 21.4.1989 and recorded it by his letter of that date to M/s Mutha Associates. Thus the land owners and the land developers were fully aware of these proceedings and participated therein by filing the application seeking time out without lodging any claim or filing any submissions or objections. It was in these circumstances that the Land Acquisition Officer ultimately proceeded to make his Award on 9.11.1989.

44. Now, as can be seen from the above, instead of filing their objections before the Land Acquisition officer, who has the authority to consider them, the petitioners preferred to directly communicate the same to the then Chief Minister. The then Chief Minister also rejected their representation in November, 1990. The petitioners did not choose to challenge that decision as well. It is only when the Land Acquisition Officer issued a notice for taking possession of the land that the petitioners rushed to the Civil Court wherein they sought to challenge the Award and an order of status quo came to be passed on 25.11.1990. As rightly pointed out by Mr. Singhavi, in the civil suit the notice under section 126(2) of the M.R.T.P. Act read with section 6 of the Acquisition Act has not been challenged. It has been challenged for the first lime in this writ petition which was filed on 30th of January, 1996 and it is now being contended that there is a departure from the designated purpose in the acquisition proceedings and also that the A.P.M.C. did not have the capacity to deal in the particular items. The submission that the A.P.M.C. had large parcel of un-utilised land and therefore it did not need the land could certainly have been made when revised draft development plan was published in the Official Gazette on 7.10.1982. It is at that stage that the petitioners were expected to lodge their objections to the reservation. After the plan was sanctioned and became final the acquisition proceedings were initiated.The declaration under section 126(2) of the M.R.T.P. Act read with section 6 of the Acquisition Act was made on 13.1.1987. Thereafter specific notices under section 9 of the Acquisition Act were given to the land owners as well as to the developers. They participated in the proceedings by filing applications for adjournment and yet no objections were lodged before the Acquisition Officer. Thus the Acquisition Officer was left with no alternative but to finalise the proceedings which he did by passing the Award of 9.11.1989. The representation made to the State Government was rejected in November. 1990 but that was also not challenged. In the suit filed on 25.11.1990 no challenge was raised to the notice under section 126(2) read with section 6.Thatwas raised for the first time in the present writ petition filed in January. 1996. As held by the Constitution Bench of the Apex Court in the case of Aflatoon (supra), the land owner is expected to take steps within a reasonable time at-least after the declaration is made under section 6 of the Act. In that matter, the writ petition had been filed at-least after notices under section 9 were issued. In our case, no steps were taken even after the notices were issued under section 9. The petitioners preferred to participate in the acquisition proceedings but did not lodge any objections over there nor did they challenge the acquisition at that stage. It is only after the Award was made after following the due procedure of law and the possession was to be taken that initially a suit to challenge the Award was filed and subsequently the present writ petition to challenge the Award as also the notices issued under section 126(2) read with section 6 way back in the year 1987. As seen from the above and as held in the case of AJlatoon(supra), a land owner is expected to challenge the acquisition within a reasonable time after the declaration under section 6 is made on an outer side as one may put it. As observed in the case of Municipal Corporation of Greater Bombay v. I.D.I, (supra), it would be necessary for the interested person to be vigilant and watchful to impugn such notification under section 126. In the High Court, under Article 226 before the acquisition becomes final and conclusive under section 12(1) of the Act between the Collector (Land Acquisition Officer) and the interested person. Whether the possession of the land continues with the land owner thereafter is immaterial and this cannot be an explanation for not challenging the notification under Sections 4 and 6 of the Act as held by the Apex Court in Ram/as Foundation v. Union of India (supra). As observed by the Apex Court in Larsen & Toubro (supra) the petitioners cannot sit on the fence and allow the State to complete the acquisition proceedings on the basis that the notification under Section 4 and declaration under Section 6 were valid and then to attack the notification on the grounds which were available to him at the time when these were published as otherwise it would put in premium on dilatory tactic. Filing of an earlier suit by the petitioners can also be of no avail to them to explain this delay. When the plaint in that suit is perused, it is seen that therein there was no challenge to the notification under Section 126(2) of the M.R.T.P. Act read with Section 6 of the Acquisition Act. That challenge is raised for the first time in this writ petition. The fact that it is subsequently held by the Apex Court that the Civil Court has no jurisdiction to go into the validity of the notices under Sections 4 and 6 of the Act State of Bihar v. Dhirendra Kumar, that cannot be a ground to explain the delay. In fact, apart from canvassing this submission across the bar, no explanation had been given in the petition or in the rejoinder concerning delay. It was submitted by Mr. Soni that it was a case of continuing wrong, but as can be seen from para 8 of the Apex Court judgment in Municipal Council Ahmednagar v. Shah Hyder Beig (supra) that plea was turned down. In fact in that matter, the S.L.P. had been entertained and thereby the writ petition was dismissed on the short ground of delay itself.

45. In the present matter also, we could have dismissed this petition only on the ground of gross delay and laches. We have however looked into the other submissions canvassed by the petitioners as well and we have found no substance in any of them. As submitted by the A.P.M.C. It is in need of this particular parcel of land for rehabilitating the Burud community which is a weaker section of the society and for setting up of the bamboo trade and flea market in which the Burud community dealt with. Having deposited an amount of over Rs. 26 Lakhs with the Land Acquisition Officer, the A.P.M.C. Is made to wait to get the possession of the land for over ten years due to the obstacles created by the land-owners/ developers one after the other. As against that for the petitioners and particularly for the 3rd petitioner-Land Developer it is only a speculative petition having put in only an amount of Rs. 50,000/- as earnest money for a land for which the compensation awarded by the Land Acquisition Officer is over Rs. 26 Lakhs.

46. For all the reasons stated above, we do not find any substance in this petition whatsoever and the same is dismissed. The interim order passed therein is vacated. As far as the costs are concerned, the order concerning therewith will be passed at the time of passing of the order in other two petitions.

WRIT PETITION HO, 362O OF 1998

WITH

WRIT PETITION NO. 3874 OF 1998

47. As noted above, Writ Petition No. 3620 of 1998 is filed by the above-referred A.P.M.C. to challenge the order dated 20th May 1998 passed by Respondent No. 4 therein i.e., Shri Narayan Rane, the then Hon'ble Minister for Revenue directing deletion of the concerned land from acquisition. That order is purportedly made under the powers available to the State Government under section 48(1) of the Acquisition Act. This petition sets out as to how the A.P.M.C. was established in 1957 and shifted to the Gultekadi market yard in 1964 after acquiring the land admeasuring 153 acres. The petition points out how the markets in the City were shifted to this area by 1980 and how the turnover increased from 1982 to 1997. It further states that still the volume of the trade is increasing and because of the insufficiency of land many of the markets such as those dealing with fodder, betel leaves and bamboo and fire wood could not be shifted to this area. The petition further points out that most of the land has come in possession of the A.P.M.C. except the disputed land.

48. This petition thereafter points out as to how the disputed Sand was Initially reserved under the M.R.T.P. Act and subsequently the acquisition proceedings started. It further points out that specific notices were given to the land owners and the land developers. Yet they did not file any objections at any stage. It points out that a representation was made by the land-owners/developers to the then Chief Minister earlier against this acquisition and it had been rejected on 5.11.1990. It further states that it is only at the stage of taking of the possession the land owners and the developers filed the earlier referred suit and later on Writ Petition No. 670 of 1996 which was admitted and interim stay was granted on 15.4.1996.

49. It was at this stage that the A.P.M.C. received notice dated 31.12.1997 from the office of the Revenue and Forest Department calling upon the petitioners to remain present for the hearing before respondent No. 4-Minister on 5.1.1998. The subject of the notice was concerning deletion of this land acquired for the A.P.M.C. The petition states that no copy of any application made by the land owners or developers was served along with that notice. The petition further states that as per the notice the Chairman and the Assistant Secretary of A.P.M.C. appeared before the Minister on that date. It is at that time that they came to know that the land owners and developers had made an application for the purpose of deleting the land from acquisition. It was submitted on behalf of the A.P.M.C. before the Minister that the matter may not be proceeded further since it was subjudice before the High Court. However, the Minister was not prepared to adjourn it. By way of caution, the petitioners had prepared their objections in writing on 3.1.1998 and the same were tendered to the Minister on that date. The Minister appeared to be in a hurry to pass an order and was not appreciating any of the points raised by the A.P.M.C. The proceeding of the day concluded at that and thereafter the A.P.M.C. straightway received the order passed by the Minister dated 20th May, 1998 which was forwarded with the Desk Officer's letter dated 1st June, 1998.

50. The order passed by the Minister directed the withdrawal of the concerned land from acquisition, principally on two grounds. Firstly, the order states that right from 1977 until 1995, the A.P.M.C. had no authority to deal in bamboo and firewood. It further records that although bamboo and fire wood have been included under the coverage of the agricultural produce on 6th February, 1995, yet due to subsequent order of the State Government dated 20th June, 1995, the implementation thereof has been stayed. The second ground as seen from the order is that A.P.M.C. has already acquired much more land and part of it is mis-utilised for setting up Beer bars. Restaurants and Marriage Halls. Thereafter the order records in its support that the Collector of Pune had sent a letter/report dated 16th March, 1998 and it disclosed that some land is utilised by the A.P.M.C. for these purposes. As stated in the order, Collector's letter records that having noted this, he had cancelled the permission for the Beer bar but the parties concerned had gone to the High Court. The letter by the Collector also records that from the reply of the A.P.M.C. given to him, it is seen that no land is made available for marriage halls. Yet, the Minister has recorded that such a use for Beer bars, hotels and restaurants is highly improper. The Minister concludes that the A.P.M.C. does not need so much land and the land which is already acquired has been misused. The Minister therefore gave two directions, firstly that the concerned land be withdrawn from acquisition. Secondly, he further directed that theA.P.M.C. must utilise the land allotted to it for its activity only and appropriate action be taken against A.P.M.C. by the Collector concerning the land which is being used for other purposes and on the ground of breach of conditions the land be withdrawn from A.P.M.C. although that be done only after issuing notice of hearing.

51. The petition makes a specific allegation that the matter was heard before the Minister only on the returnable date of the notice viz. on 5.1.1998 and a copy of the application, if any, made by the land owners/ developers, was not made available to the petitioners. As far as the Collector's report dated 16.3.1998 is concerned, obviously it is subsequent to the date of hearing of 5.1.1998 and theA.P.M.C. had no knowledge of it. The petitioners were never called for any hearing after, 5.1.1998 and thereafter they straightway received the order dated 20th May, 1998 passed by the Minister. Thus the report of the Collector was never made available to the A.P.M.C. The petition encloses a copy of the reply dated 3.1.1998 filed by the A.P.M.C. before the Minister. It specifically states in Para 6 that the stay on regulating bamboo and fire wood by A.P.M.C. had been lifted on 18th February. 1997 and copy of that order is enclosed along with that reply dated 3rd January, 1998.Yet the Minister has chosen to refer only to the prior position namely the stay granted by the State Government on 20th June 1995 refusing to take note of this very material notification placed on record. It is relevant to note that in the impugned order there is no reference whatsoever to the reply dated 3.1.1998 filed by the A.P.M.C. or to the order dated 18.2.1997 lifting the stay, tendered along with the said reply. The petition states that the impugned order was passed totally on extraneous and irrelevant grounds and without proper application of mind. It further states that apparently the Minister had neither consulted the Director of Marketing nor the Commissioner nor the Town Planning Department. The petition, makes a specific allegation in para 24 which is as follows :

'The petit Myrs submit that it is apparent that the bolder of power of attorney of respondent Nos. 5 to 6 viz. Mr. Shantilal Mutha who is a very influential person and well-known businessman and builder from Pune has used his influence and obtained the impugned order of deletion from acquisition of the land from the Minister. The impugned order is clearly mala fide and deserves to be quashed and set aside.'

52. A reply has been filed on behalf of the State Government by the Desk Officer, Revenue and Forest Department affirmed on 22nd June, 2000. In para 2 of his reply, the Desk Officer states as follows :

'I further say that it is true that the copy of the application as filed by respondent Nos. 5 and 6 (land owners) was not served upon the petitioners.'

Thereafter in para 3 of his reply the Desk Officer further states as follows :-

'However, the Hon'ble Minister for Revenue at the time of hearing has observed that the petitioners-A.P.M.C. have used some of the portions of the building constructed in the area which was acquired for them for a Beer Bar, Hotel and Restaurant and was not used for the purpose for which it was acquired.'

In para 6 of the reply it is stated as follows :-

'It is true that the Government was required to defend acquisition. However, when it was noticed the land was not used for the purpose for which it was acquired, the necessary order was passed by the Minister.'

In para 7 however, it is denied that the order was passed in hurry or on the influence of Mr. Mulha.

53. Mr. Shantilal Mutha, the land developer, has filed a reply denying the allegations made against him. He has stated that at different places the land acquired for the A.P.M.C. Is left un-utilised and has given particulars of the same. He has also repeated that parts of the land allotted to A.P.M.C. are used for setting up of restaurants, beer bars, marriage halls, etc.

54. Shri Narayan Tatu Rane, the then Minister has filed his affidavit in reply. He has stated that the allegations of mala fide are vague and the order is passed in his capacity as the Minister for Revenue in discharge of his official, duty. In para 3, it is specifically stated as follows :

'Though the hearing was conducted on 5.1.1998 the order- was passed after a substantial period on 20.5.1998 after taking into consideration the record available before the State Government and the letter of Hon'ble Collector, Pune dated 16th March, 1998.'

He further states that the objection of the petilioners-A.P.M.O. has been duly considered and only thereafter the order was passed. The affidavit denies that the impugned order was passed on account of influence of Shantilal Mutha.

55. Writ Petition No. 3874 of 1998 is filed by Rajendra D. Khandwe and two others and Mr. Narendra Walawalkar has appeared for them. That petition was filed because of the apprehension that Writ Petition No. 3620 of 1998 will be withdrawn by the A.P.M.C..The petition makes an allegation that after the above-referred order of withdrawal was passed on 20th May 1998, the A.P.M.C. was superseded and that the Minister Shri Narayan Rane, at the instance of the land developer M/s. Mutha Associates, had prevailed upon the Administrator to withdraw Writ Petition No. 3620 of 1998. As recorded earlier, when this petition came up for admission, the Counsel then appearing for the A.P.M.C. had made a statement that Writ Petition No. 3620 of 1998 will not be withdrawn. This petition is otherwise containing a challenge to the order dated 20th May, 1998 in the similar manner as Writ Petition No. 3620 of 1998. Hence, the contents thereof are not repeated. As far as the allegation that Shri Narayan Rane had prevailed upon the Administrator at the instance of M/s Mutha Associates is concerned, the same is denied by Shri Narayan Rane by filing the affidavit on 8th of NoVember, 2000. Neither the State Government nor the developer-Shri Mutha has filed any separate reply to this petition.

56. Submissions on behalf of the petitioners :

Mr. Slnghavi, learned Counsel appearing for the petitioners-A.P.M.C. in Writ Petition No. 3620 of 1998 principally advanced three submissions. Firstly, that the order of withdrawing the concerned land from acquisition by Invoking the power of the Government under Section 48 of the Acquisition Act was bad in law Inasmuch as the power under the saidsection cannot be exercised in a case where the acquisition proceedings are initiated under the M.R.T.P. Act. The second submission of Mr. Singhavi was that the order of withdrawal had not been published by notification in the Official Gazette and, therefore, it had no legal effect. The third submission was that the order was bad in law for having been arrived at in violation of principles of natural justice, was totally unjustified on the material on record and perverse, and was mala fide and arbitrary.

57. Applicability of section 48 of the Acquisition Act :

The submission of Mr. Singhavi in this behalf was that under the M.R.T.P. Act the acquisition proceedings were initiated upon an application made by the Planning Authority, Development Authority or the Appropriate Authority as the case may be under Section 126(l)(c) of the M.R.T.P. Act. The acquisition was only one of the methods of taking over the land for the planned purpose. The principal objective of the M.R.T.P. Act was planned development, and for that purpose whenever the land was required to be taken over, it could be taken over by one of the three methods provided under Section 126(1) of the M.R.T.P. Act. The first method, as provided under the said section, was to pay the agreed amount whereby the Acquiring Authority purchases the land by agreement. The second method is by granting the land-owner or the lessee extra F.S.I. or T.D.R. against the area of land surrendered free of costs and free from all encumbrances, and the third method was by making an application 4.0 the State Government for acquiring land under the Acquisition Act. Mr. Singhavi submitted that under the M.R.T.P. Act what was important was the reservation of the land for the planned purpose. There was no question of utilising the power of the State Government under section 48 of the Acquisition Act because even if the said section was held to be applicable and land was withdrawn by using the power thereunder, the reservation will continue. It can lapse only under the circumstances mentioned under Section 127 of the M.R.T.P. Act or unless the State Government acquires the particular land for a public purpose different from a public purpose designated in any plan or scheme which is permissible under Section 128 of the M.R.T.P. Act. The third mode of deletion of reservation is under Section 50 of the M.R.T.P. Act whereunder the Appropriate Authority makes a request to the Planning Authority to delete such reservation if it is satisfied that the land is no longer required for that particular public purpose. It was submitted by Mr. Singhavi that since the acquisition is for a particular purpose in the development plan the State Government cannot withdraw from acquisition in such cases and the only power available under the M.R.T.P. Act is either to allow the reservation to lapse (section 127) or to change over to another purpose (section 128) or to delete the reservation (section 50) as stated above.

58. It was submitted by Mr. Singhavi that Chapter VII of the M.R.T.P. Act provides for the acquisition of land for the purposes of this Act and to the extent the assistance from the provisions of the Acquisition Act was required they were specifically referred wherever necessary underSection 126(2) and (3) and Section 128(3) of the M.R.T.P. Act. The provisions of the Acquisition Act which are thus specifically mentioned i.e. Sections 6. 16 and 17 of the Acquisition Act and those which are made applicableby necessary implication i.e. Section 23 of the Acquisition Act will alone apply to the proceedings under the M.R.T.P. Act and none other. In support of this submission Mr. Singhavi relied upon a judgment of the Apex Court in the case of State of Maharashtra v. Joginder Singh, and particularly paragraphs 10. 11 and 12 thereof. In that matter the Apex Court has in terms held section 11-A of the Acquisition Act providing for a period of 2 years for making of the award inapplicable to the proceedings under the M.R.T.P. Act on this basis. In Para 10 of the Judgment the Apex Court observed as follows :-

'.....Where the Legislature intended to apply this specific procedureor fetters in exercising the power as visualised by the Central Act. it did so specifically..... Since the Legislature had incorporated specific provisionsof the Central Act the necessary conclusion is that the Legislature did not intend to apply the unspecified provisions of the Central Act to the exercise of power under the Act. In this behalf, it is to be remembered that there is a distinction between the incorporation and adoption by reference.'

The Court however held in that Judgment that by necessary implication also certain provisions can be held to be made applicable such as Section 23 of the Acquisition Act which was a substantive provision to decide the compensation as against the one in Section 11-A which the Court considered only as a procedural one.

59. Then Mr. Singhavi relied upon a judgment of the Constitution Bench in the case of State of Gujarat v. Shantilal Mangaldas,. The Court considered the effect of Sections 81 and 84 of the Bombay Town Planning Act, 1955 in that matter. The said Act was a precursor to the M.R.T.P. Act and Sections 125 and 128 of the M.R.T.P. Act are pari materia with sections 81 and 84 of the earlier Act. There is a reference to these sections in Para 54 of the judgment. In the context of the Bombay Town Planning Act, the Apex Court held that there was no option to the local authority to resort to one of the Acts as the alternative methods which result in acquisition. The local authority can acquire only under the Bombay Town Planning Act. The Apex Court observed as under :-

'There are therefore two separate provisions, one for acquisition by the State Government and the other in which the statutory vesting of land operates as acquisition for the purpose of town planning by the local authority.'

The submission of Mr. Singhavi, therefore, was that these being two different mechanisms the idea of withdrawal from acquisition available under Section 48 of the Acquisition Act cannot be brought into the M .R.T.P. Act.

60. The above submission of Mr. Singhavi was supported by Mr. Walawalkar, learned Counsel appearing for the petitioners in Writ Petition No. 3874 of 1998. Mr. Walawalkar drew our attention to the particular passage under the heading 'Incorporation of earlier enactment' appearing at page 223 of Crates on Statute Law (1st Indian reprint of 1999 - 7th Edition). In that paragraph the following statement of Lord Esher M. R. In Re : Wood's Estate, (1886) 31 CD 607 is quoted :

'If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write thosesections into the new Act just as if they had been actually written in it with pen, or printed in it, and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all.'

Mr. Walawalkar submitted that, therefore, we had to refer to the Acquisition Act only for the sections which were specifically referred in the M.R.T.P. Act or where the reference was required by necessary implication as held in Jogindersing's case (supra). He also drew our attention to the observations of the Apex Court in Para 12 of the judgment in the case of Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. M/s Parson Tools & Plants. Kanpur, where the Court has observed as follows :-

'If the Legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissions in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of Justice and equity. 'To do so' - (at p.65 in PremNath L. Ganesh v. Prem Nath L. Ram Nath. Per Tek Chand J.) 'Would be entrenching upon the preserves of Legislature', the primary function of a Court of law being jus dicere and not jus dare.'

61. This submission of Mr. Singhavi and Mr. Walawalkar was opposed by Mr. Jahagirdar, learned Counsel appearing for the land-developers in Writ Petition No. 3620 of 1998 and by Mr. Dharmadhikari, learned Counsel appearing for them in Writ Petition No. 3874 of 1998 as well as by Mr. Thorat, learned Counsel appearing for the Minister Shri Narayan Rane. It was submitted by them that the above argument on behalf of the A.P.M.C. can be accepted only if they satisfy that the M.R.T.P. Act was a complete and self-contained Code for acquisition. It was submitted that Section 48 of the Acquisition Act was undoubtedly a substantive provision and since there was no such corresponding provision in the M.R.T.P. Act it could not be said that the said section was not attracted. It was submitted that if this Act provided for acquisition it must also provide for withdrawal therefrom. They pointed out that way back in the case of Bhogilal Laherchand v. State of Maharashtra, a Division Bench of this Court had taken a view that there was no conflict between the two Acts nor did the Act contain any inconsistent provisions. The Acquisition Act was a complete Code for acquisition for public purposes and for companies. It provided for acquisition and for withdrawal therefrom. Withdrawal from acquisition was a necessary requirement whenever acquisition was provided. If the view canvassed by the A.P.M.C. Is accepted, there would be conflict between two enactments and on a similar Interpretation, a number of provisions substantive as well as procedural under the Acquisition Act would never become applicable to the acquisitions under the M.R.T.P. Act. Along with Section 48. the substantive rights of making a reference, apportionment of the compensation and payment of the sum along with interest and appeal therefrom would not be available to the proceedings under the M.R.T.P. Act.

62. Mr. Dharmadhikari submitted that the judgment rendered by the Apex Court in Joginder Singh's case (supra) ought to be read only in the context of Section 11-A of the Acquisition Act. He submitted that as the judgment itself stated in Paras 12 and 13 thereof, the provision of Section 126(4) of the M.R.T.P. Act providing for a fresh declaration for acquiring the land was also pressed into service by the Apex Court in that matter while arriving at its judgment. He pointed out that in Joginder Singh's case (supra) the Apex Court has relied upon an earlier judgment in the case of Gauri Shankar v. State of U.P., on the principle of legislation by incorporation. That very judgment in Gauri Shanker's case was referred to and distinguished in a subsequent judgment of the Apex Court in the context of Karnataka Acquisition of Land for House Sites Act in the case of Mariyappa &Ors.v.; State of Karnataka & Ors... The judgment in Gauri Shankar's case (supra) has been clearly distinguished in Paras 31. 33, 34 and 35 of Mariyappa's case (supra). The Court preferred to follow the principles laid down in the case of State of M.P. v. M. V. Narasimhan, which laid down the exceptions to the rule of incorporation. In Para 36 of the judgment in Mariyappa's case (supra) the Apex Court has observed as follows :-

'36. We are of the view that the Karnataka Act, 1972 clearly comes within the exceptions stated in M.V. Narnsimhan's case : 1975CriLJ1639 for the following reasons :

Firstly, there being no detailed machinery whatsoever in the Karnataka Act. 1972. that Act cannot be treated as a self-contained or complete Code. Secondly, the Karnataka Act, 1972 and the Central Act, 1894 (as amended by the Karnataka Act, 1961)are supplemental to each other for unless the Central Act supplements the Karnataka Act. the latter cannot function. Thirdly, these Acts are in part materia because the Karnalaka Act, 1972- unlike the Calcutta Act. 1911 and the U.P. Act, 1965 does not deal with any other subject but deals with the same subject of land acquisition which otherwise would have fallen within the ambit of the Central Act, 1894. For the aforesaid reasons, we are of the view that the amendments made in 1984 to the Central Act, 1894 including Section 11-A have to be read into the Karnataka Act, 1972. so far as enquiry, award, reference to Court, apportionment of amount and the payment of amount in respect of land acquired under the Act.'

Mr. Dharmadhikari points out that whereas the judgment in Joginder Singh's case was a judgment of two judges the one in Mariyappa's case was also one by two Judges, and which was subsequent to the one in Joginder Singh's case. He submitted that as far as Section 11-A of the Acquisition Act is concerned, as of now, this Court had to follow the judgment in Joginder Singh's case. However, as far as other provisions are concerned. In view of this subsequent judgment in Mariyappa's case, this Court may not go to the extreme of holding that Section 48 and the other provisions of the Acquisition Act were not applicable to the acquisitions under the M.R.T.P. Act. He also relied upon another judgment of a Division Bench of this Court in the case of State of Maharashtra v. Kamalabai, whereinthe Division Bench held that the provisions of the Acquisition Act were specifically applicable to the proceedings for acquisition under Section 126 of the M.R.T.P. Act.

63. The second submission of Mr. Singhavi was that the order of withdrawal passed by the State Government had not been published by notification in the Official Gazette and, therefore, it was of no legal effect. Mr. Singhavi in this behalf, relied upon the observations of the Apex Court in the case of M/s Larsen and'Toubro Ltd. v. State of Gujarat & ors. In Para 28 of that judgment, the Court referred to the following observations in an earlier judgment in the case of State of Maharashtra v. Umashankar Rajabhau.

'So long as there is no notification published under Section 48(1) of the Act withdrawing from the acquisition, the Court cannot take notice of any subsequent disinclination on the part of the beneficiary.'

It was canvassed in that matter that the said section did not contemplate issuance of any notification and it could not be brought in by reference to Section 21 of the General Clauses Act. It was submitted that although Sections 4 and 6 of the Acquisition Act talk of notification there was no such mandate under Section 48. The Apex Court negatived the submission by observing at the end of Para 30 as follows :-

'..... We do not think that Mr. Salve is quite right in his submissions.When Sections 4 and 6 notifications are issued, much has been done towards the acquisition process and that process cannot be reversed merely by rescinding those notifications. Rather it is Section 48 under which, after withdrawal from acquisition is made, compensation due for any damage suffered by the owner during the course of acquisition proceedings is determined and given to him. It is, therefore, implicit that withdrawal from acquisition has to be notified.'

'31. Principles of law are, therefore, well settled. A notification in the Official Gazette is required to be issued if the State Government decides to withdraw from the acquisition under Section 48 of the Act of any land of which possession has not been taken.'

64. Mr. Dharmadhikari, learned Counsel appearing far the land-developers submitted in reply that merely because the withdrawal order was not published or printed in the Official Gazette it would not become invalid or illegal. The legality or validity there of has to be tested not upon Its publication but upon its existence, and it is nobody's case that such an order was in fact not passed by the Slate Government in the present case. The non-printing or non-publication in the Official Gazette cannot take away its legal effect and validity. Mr. Dharmadhikari pointed out that in the Manual of Land Acquisition prevalent in Maharashtra there was no requirement for any statutory order for withdrawing from acquisition. In fact Para 303-B thereof was to the contrary. The said Para 303-B came up for consideration before a learned Single Judge in the case of Atmaram M. Bhoir & ors. v. State of Maharastra & Ors, and in view of the said Para 303-B. he held that no statutory order for withdrawing from acquisition was necessary. It is however relevant to note that the necessity of notification of withdrawal under Section 48 in view of issuance of notifications under Sections 4 and 6 of the Acquisition Act was not canvassed before a learned Single Judge.

65. Mr. Dharmadhikari was however fair enough to point out that a Division Bench of this Court, which did not notice this judgment of the learned Single Judge, has also taken a view similar to the Apex Court's view in the above-referred judgment in the case of L & T(supra). In the said judgment of the Division Bench the case of Prakash Vasudeo Deodhar & Ors. v. State of Maharashtra & Ors., the Court held that the provisions of the said Manual are guidelines. However, what is important to note is that the view taken by the Division Bench regarding the necessity of a notification for withdrawal under Section 48 of the Acquisition Act is similar to the one taken by the Apex Court. In para 6 of the said Judgment, the Division Bench has referred to the said Para 303-B of the Manual of Land Acquisition and thereafter has observed as follows:-

'6. The submission of Shri Paranjape that the withdrawal of land from acquisition under section 48 need not be by publication of notification in the Official Gazette also cannot be accepted. The contention that provisions of section 48 do not prescribe for a particular mode and the Manual of Land Acquisition gives guidelines to the Special Land Acquisition Officer providing that publication of notification is not required cannot be accepted. It is undoubtedly true that section 48 does not prescribed for a mode or the manner in which the lands can be withdrawn, but if the steps for acquisition of lands arc taken by following a particular procedure, then the same procedure must be followed for withdrawing what was put in motion. It is incumbent upon the Government to publish notification in the Official Gazette while exercising powers under section 4 and section 6 of the Land Acquisition Act and once the proceedings have started after observance of the requisite mode, then it is mandatory for the Government to follow the same mode while withdrawing the land from the acquisition. The Manual of Land Acquisition published in the State merely gives guidelines and such guidelines can never be the determining factor. In our judgment publication of notification while exercising powers under section 48 is desirable to entitle the owner to claim compensation under sub-section (2) of section 48 of the Land Acquisition Act. It is also desirable that (he people at large are made aware of the fact of withdrawal so as to enable them to deal with the lands.

66. Violation of principles of natural justice, perversity of the order and malafides :

The third submission of Mr. Singhavi was that (1) the order of withdrawal was passed by procedure which was grossly in violation of the principles of natural justice, (ii) that on the material on record, it was totally unjustified and perverse and (iii) lastly that it was actuated by male/ides and was arbitrary. Mr. Singhavi pointed out that during the pendency of Writ Petition No. 670 of 1996 (which was admitted with a stay on 15.4.1996) the A.P.M.C. received notice dated 31.12.1997 from the office of the Revenue and Forest Department castling upon the petitioners to remain present for the hearing before the Revenue Minister on 5.1.1998. The subject of the notice was concerning deletion of this land acquired for the A.P.M.C. but no copy of any application on the basis of which theproceeding was being held was enclosed therewith. The Chairman and the Assistant Secretary of the A.P.M.C. remained present before the Minister on that date. It was at that time that they came to know that the land developer had made an application for deleting the concerned land from acquisition but a copy was not given to them on that date also. The Minister was requested not to proceed since the matter was subjudice before the High Court, yet the Minister proceeded with the hearing. The office bearers of A.P.M.C. had taken their representation in writing by way of abundant caution and the same being dated 3.1.1998 was tendered to the Minister. The Minister appeared to be in hurry and concluded the hearing on the same date. Subsequently the A.P.M.C. received the Minister's order dated 20th May. 1998, which contained two directions. Firstly, that the disputed land was being withdrawn from acquisition and secondly, a further enquiry was to be held with respect to the other lands allegedly utilised by theA.P.M.C. for activities other than those of A.P.M.C. and the same be taken back from the A.P.M.C. thereafter.

67. Mr. Singhavi submitted that the entire proceeding before the Minister was a farce. He submitted that a hearing to the acquiring body incompliance with the principles of natural justice was must before any order of withdrawal of the land under Section 48 of the Acquisition Act could be passed, assuming that the power under that section was available in proceedings under the M.R.T.P. Act also. He submitted that if at all there was any doubt with respect to the right of hearing to the beneficiary in view of the observations of the Apex Court in the judgment in the case of The Special Land Acquisition Officer, Bombay & ors. v. M/s Godrej &Boyce;, the said judgment had been subsequently explained in Amarnath Ashram Trust Society & Anr. v. Governor of Uttar Pradesh & Ors. The Apex Court distinguished the judgment of Godrej & Boyce as in that case the challenge to the withdrawal order under Section 48 was by the owner himself and as provided in sub-section (2) of Section 48 if as a result of withdrawal from acquisition any damage be suffered by any parly he could be paid damages for the loss caused to him. Subsequently in Para 31 of L & T's case (supra) while approving the approach in Amarnath Ashram Trust's case (supra), the Apex Court observed as follows:-

'31. . . . . An owner need not be given any notice of the intention of the State Government to withdraw from the acquisition and the State Government is at liberty to do so. Rights of the owner are well protected by sub-section (2) of Section 48 of the Act and if he suffered any damage in consequence of the acquisition proceedings, he is to be compensated and sub-section (3) of Section 48 provides as to how such compensation is to be determined: There is, therefore, no difficulty when it is the owner whose land is withdrawn from acquisition is concerned. However, in the case of a companv. opportunity has to be given to it to show cause against any order which the State Government proposes lo make withdrawing from the acquisition. Reasons for this are not far lo seek. After notification under Section 4 is issued, when it appears to the State Government that the land in any locality is needed for a company. any person interested in such land which has been notified can file objections under Section 5-A(1) of the Act. Such objections are to be made to the Collector in writing and who after giving the objector an opportunity of being heard and after hearing of such further enquiry, if any. as the Collector thinks necessary, is to make a report to the Stale Government for its decision. Then the decision of the State Government on the objections is final. Before the applicability of other provisions in the process of acquisition, in the case of company, previous consent of the State Government is required under Section 39 of the Act nor (sic) unless the company shall have executed the agreement as provided in Section 41 of the Act. Before giving such consent. Section 40 contemplates a previous enquiry. Then compliance with Rules 3 and 4 of the Land Acquisition (Company) Rules, 1963 is mandatorily required. After the stage of Sections 40 and 41 is reached, the agreement so entered into by the company with the State Government is to be published in the Official Gazette. This is Section 42 of the Act when provides that the agreement on its publication would have the same effect as if it had formed part of the Act. After having done all this. State Government cannot unilaterally and without notice to the company withdraw from acquisition. Opportunity has to be given to the company to show cause against the proposed action of the State Government to withdraw from acquisition. A declaration under Section 6 of the Act is made by notification only after formalities under Part VII of the Act which contains Sections 39 to 42 have been complied and report of the Collector under Section 5-A(2) of the Act is before the State Government who consents to acquire the land on its satisfaction that it is needed for the company. A valuable right, thus, accrues to the company to oppose the proposed decision of the State Government withdrawing from acquisition. The Stale Government may have sound reasons to withdraw from acquisition but those must be made known to the company which may have equally sound reasons of perhaps more which might persuade the State Government to reverse its decision withdrawing from acquisition.'

68. Mr. Singhavi, therefore, submitted that as held by the Apex Court the State Government may have sound reasons to withdraw from acquisition but those must be made known to the beneficiary which might persuade the Government to reverse its decision on the basis of equally sound reasons. In the instant case, the communication from the State Government simply called the A.P.M.C. to attend before the Minister by short notice of four days. All that the said letter dated 31.12.1997 stated was that the hearing was fixed before the Minister on 5.1.1998 and that was about the deletion of the concerned land. The said notice could not be considered as disclosing the reasons why the Government was contemplating withdrawal from acquisition. That apart, no copy of the application filed by the land-owners was given to the A.P.M.C. even at the time of the hearing before the Minister. The Minister was obviously in a hurry as alleged in the petition. In spite of pointed out that the land owners had filed the writ petition and the same was pending in the High Court raising thesamegrievances. the Minister proceeded with the matter and concluded the hearing on the same date. During the course of the proceedings, the Minister observed that the A.P.M.C. had used some of the portions of the building constructed for Beer Bar, hotel and restaurant. There was however no material in support thereof before the Ministerat that point of lime. The fact that the Minister made such oral observations and that copy of the application of the land owners/developers was not given to the A.P.M.C. Is admitted in the affidavit of the Stale Government. Thereafter the A.P.M.C. received straightway order of withdrawal dated 20th May, 1998. That order referred to the Collector's Report dated 16th March, 1998 which was obviously received subsequent to the concluding of the hearing and the same was never made available to the A.P.M.C.. If the Minister was relying upon any additional material, that ought to have been made available to the party against whom it was being utilised. Thus there was complete violation of principles of natural justice as a result of totally improper hearing before the Minister.

69. That apart Mr. Singhavi submitted that the order passed by the Minister on the fact of it is preverse. The order principally gave two grounds for withdrawal of the land. Firstly, it was stated that the land was not needed by the A.P.M.C. at all. It is specifically stated in Para 4 of the said order (when translated from Marathi) which reads as follows: -

'By a Government Notification dated 6th February, 1995. two entries of bamboo and fire wood were included in the regulation of the A.P.M.C.. However in view of the stay granted by the State Government on 20th June, 1995, che A.P.M.C. was prohibited from regulating bamboo and fire wood. Therefore, right from 1977 to 1995, the A.P.M.C. was not authorised to deal into bamboo and fire wood. The Government granted that authority on 6th February, 1995 but the said notification was stayed on 20th June. 1995. Hence the A.P.M.C. cannot take over the land for the activity of bamboo and fire wood and the action of the Land Acquisition Officer of acquiring the land for the A.P.M.C. for that purpose is not legal.'

Now, what is important to note is that the stay granted by the State Government on 20th June, 1995 was already lifted by the State Government on 18th February, 1997. A copy of that order lifting the stay was enclosed at Sr. No. 9 to the representation of the A.P.M.C. dated 3rd January, 1998 which was tendered to the Minister. What is further material to note is that apart from filing the application for withdrawal dated 12th November, 1997, the landowners/developers had filed written arguments before the Minister. At the end of Para 14, they have also accepted that the stay granted in June 1995 was lifted by the State Government by its decision of 18th February, 1997. Although this was the position on record, yet the Minister has ignored this aspect placed before him and has chosen to rely upon the earlier stay granted on 20th June, 1995 to state that the A.P.M.C. had no authority to deal into bamboo and fire wood.

70. Mr. Singhavi also submitted that the Minster's order is also perverse for the reasons that it referees to the use of land for Beer Bar, hotel and restaurant by the A.P.M.C.. Now, as per the report of the Collector dated 16th March, 1998, which is referred in Para 6 of the Minister's order, the Collector has pointed out that the permission for Beer Bar has been cancelled and the concerned party had gone to the High Court. Inspite of this the Minister has come to the conclusion that the A.P.M.C. had been mis-utilising the land. Mr. Singhavi submitted that as stated in ground No . 6 of Para 25 of this petition in view of the huge volume of trade and visitors to the market yard every day, the facilitiesof hotel and restaurant and ancillary services could never be objected. He pointed out that there have been proceedings in this Court in regard to this matter. No action was taken against the A.P.M.C. for giving permission to a Beer Bar. Since then the relevant rules have been changed and now no beer bar can be allowed in the market yard. This being the position, the existence of a beer bar cannot be used against the A.P.M.C, to conclude that it did not need the relevant land for the activity of bamboo trade and fire wood and thus the order was perverse.

71. The third submission of Mr. Singhavi in this behalf was that the order was obviously mala fide. A specific allegation has been made in Para 24 of this petition that the order was passed in view of the influence exerted by the developer Shantilal Mutha. Mr. Singhavi submitted that but for such an influence being exerted, there was no need for the Minister to pass such an order. The necessary inference had to be drawn because otherwise the Minister had no reason to proceed in such a hurry after a very short notice and that too without giving a copy of the application of the land owners to the A.P.M.C. and then relying upon the material received subsequent to the date of hearing. Mr. Singhavi relied upon a judgment of the Apex Court in the case of S. Partap Singh v. State of Punjab. and submitted that the inference of bad faith had to be deduced as a reasonable and inescapable inference from these proved facts.

71A. The allegation of malafides made by the A.P.M.C. was supported by Mr. Walawalkar appearing for the petitioners - Rajendra Khandwe and others in Writ Petition No. 3874 of 1998. Mr. Walawalkar submitted that within a month after serving the order dated 20th May, 1998 on the A.P.M.C. on 5th June 1998, the Marketing Committee was superseded by the Government on 6th duly, 1998, and an Administrator was appointed. At that time, it was reliably learnt that the Minister Shri Rane, at the instance of the land-developer Shri Mutha, had prevailed upon the Administrator to withdraw Writ Petition No. 3620 of 1998 and hence Rajendra Khandwe and others were required to file Writ Petition. No. 3874 of 1998. It is only because of the intervention of another Division Bench that a statement was made that the said Writ Petition No. 3620 of 1998 will not be withdrawn. Mr. Walawalkar submitted that appointment of Administrator on 6th July, 1998 cannot be considered as an isolated aec and has to be seen as a part of the game-plan on the part of Shri Mutha, the land-developer, to get this parcel of land withdrawn from acquisition with the help of the concerned Minister. He pointed out that a specific allegation in this behalf had been made in Para 23 of Writ Petition No. 3874 of 1998, though denied by Minister Shri Narayan Rane by filing an affidavit. Mr. Walawalkar however drew our attention to the fact that Shri Mutha had not filed any affidavit controverting these allegations.

72. The grievance of violation of natural Justice, perversity of the order and malafides was stoutly sought to be refuted by the counsel appearing for the land-developers and by Mr. Thorat appearing for the Revenue Minister Shri Rane. With respect to the requirement of a fair hearing prior to the passing of the withdrawal order under Section 48 of the Acquisition Act, it was submitted by them that no such requirement can be spelt outfrom the said section and that there was no provision for giving a notice and hearing either to the owner or to the beneficiary. It was submitted that the power under Section 48 of the Acquisition Act was not even a quasi judicial power. It was a liberty given to the State Government to withdraw from acquisition provided the facts necessary to be satisfied are present in the matter. That power could be invoked so long as the Government had not taken possession of the land. It was submitted that, as held by the Apex Court in the case of Special Land Acquisition Officer v. Godrej & Boyce (supra), there cannot be any limit set or fetters put on the exercise of power by the Government under the said section. It was further submitted that the observations of the Apex Court in the case of L & T (supra) ought to be restricted to a case of acquisition of land for a company and that in the peculiar facts and circumstances of that case, the Apex Court had observed that the notice was necessary to a company before the Government decided to withdraw the land from acquisition. That has to be read in the context ' of Part VII of the Acquisition Act. It was alternatively submitted that in any case a hearing was given by the Minister in his chamber and the prior notice of hearing was sent to the A.P.M.C. and that these facts were not disputed. It was also pointed out that the A.P.M.C. had filed its representation dated 3rd January, 1998 on that date at the time of hearing and that its office bearers were also present before the Minister. This being the position, the proceeding cannot be faulted as being in breach of the requirement of a hearing, if any. With respect to the Minister proceeding with the application made to him when earlier writ petition was pending, it was submitted that there was no bar against the Minister disposing of the application made to him. Similarly with respect to the allegation that the Minister proceeded in haste, it was submitted that the representatives of the A.P.M.C. were present at the time of the hearing on 5th Jaunary, 1998 and there was no adjournment application on record.

73. With respect to the grievance that the order of withdrawal was not supported by the material on record and that it was perverse, it was submitted by the learned Counsel that adequacy of sufficiency of reasons in an administrative order could not be a subject-matter of judicial review. As far as the finding of the Minster that much tracks of the lands acquired for the A.P.M.C. earlier were not utilised by it for the purpose for which they were acquired, it was submitted that the A.P.M.C. Itself did not dispute this assertion as can be seen from ground No. 6 in Para 25 of Writ Petition No. 3620 of 1998. With respect to the Minister's order to the Collector to hold the further enquiry about the other lands, it was submitted that the same should be considered as the order passed by the Minister in his capacity as the Head of the Department and the same cannot be faulted. With respect to the Minister relying upon the Collector's report received subsequent to the date of hearing it was submitted that the same was called for by sending a letter earlier, though it was received subsequent to the hearing. With respect to the Minister not referring to the correct factual position with respect to the slay on bamboo trade being lifted on 18.2.1997, it was categorised at the highest as a mistake and that the same by itself should not lead one to the conclusion that the order was perverse.

74. With respect to the allegation of malafides and arbitrariness, it was submitted that these allegations are made purely as an after thought. It was submitted in this behalf thai the allegation of malafides contained in the petition is vague and is made without any concrete material and that no case of malafides can be based on such allegation. Mr. Thorat, learned counsel for the Minister submitted that though an allegation is made that the developer - Shri Mutha exercised influence on the Minister, the petition is silent as to on what date, time, place and in what manner the alleged influence was exercised. Mr. Thorat submitted that the provisions of Order 19 of the Code of Civil Procedure require that the deponent of an affidavit must precisely state the I'acts as is able of his own knowledge to prove. Similarly Order 6 Rule 15(2) requires that a person verifying a pleading shall specify by reference to the numbered paragraph as to what he was verifying to his own knowledge and what he believed to be true. He submitted that the present petition as well as the supporting affidavit were lacking in these particulars. Mr. Thorat submitted that on the basis of mere allegations no inference of malafides can be drawn. He relied upon the observations of the Apex Court in different judgments in this behalf. Thus he relied upon the observations in Para 15 in the case of A. Periakaruppan v. State of Tamil Nadu,1 where in the context of the marks allotted for interview for admission to certain medical colleges a numerous students whose performance in the University examination was known to be satisfactory had secured very low marks in the interview. On the other hand, a large number of students who had secured very high marks in the University examination had secured very low marks in the interview. Yet the Court observed : 'This circumstance is undoubtedly disturbing but the Court cannot uphold the plea of malafides on the basis of mere probability.' Then he referred to the observations of Bhagwati, J. (as he then was) in the case of E.P. Royappa i>. State of Tamil Nadu & Anr., wherein the learned Judge in Para 92 of that judgment observed : 'The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.' Then he relied upon a judgment in the case of Tara Chand Khatri v. Municipal Corporation of Delhi & Ors.,3 wherein the Court observed in Para 27: 'It has been held time and again by this Court that the High Court would be justified in refusing to carry on investigation into the allegations of malafides if necessary particulars of the charge making out a prima factice case are not given in the writ petition.' Thereafter he relied upon a judgment of the Apex Court in the case of M/s Sukhwinder Pal Bipan Kumar & Ors. v. State of Punjab & Ors..' where the Court held that 'In the matter of malafides the onus lies heavily on the person alleging it. If the nature and source of knowledge is not disclosed the affidavit will not be one as required by law for this purpose.' Lastly, Mr. Thorat reliedupon a Judgment in the case of M. Sankaranarayanan, I.A.S. v. State of Karnataka & Ors. In Para 12 of that judgment, the Court observed that 'Inference of malafides must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.' He. therefore, submitted that on all these counts the petitioners have failed to lay down any foundation in support of the allegations of malafides and the same ought to be rejected.

75. As far as the State Government is concerned, it has taken a peculiar stand in this matter. Although it defended acquisition of land by filing an affidavit in reply in Writ Petition No. 670 of 1996, it has also filed an affidavit in Writ Petition No. 3620 of 1998 defending the withdrawal. Mr. C. J. Sawant. learned Senior Counsel appearing for the State Government was fair enough to state that whereas the Government was maintained its stand in Writ Petition No. 670 if 1996, it was leaving to the Court to pass appropriate orders in Writ Petition No. 3620 of 1998. We repeatedly asked Mr. Sawant to file afresh affidavit to this effect but the State preferred not to file any affidavit while making a statement as above through its counsel. Mr. Sawant addressed us in Writ Petition No. 670 of 1996 and Mr. parsurami, learned A.G.P. represented the State in other two matters. Mr. Parsurami confined himself to stating the legal position namely that the power available to the State Government under Section 48 of the Acquisition Act would be available to the proceeding under the M.R.T.P. Act also. He was fair enough to produce to us the File of the particular proceeding at the level of the Minister for our perusal. He refrained from addressing us on the merits of the order or withdrawal. That was probably because the Government in power, as of now, is the one wherein Shri Narayan Rane is no longer a Minister but is in fact adversarial to him.

76. Conclusions:

As stated above, the grievance of Mr. Singhavi. learned Senior Counsel appearing for A.P.M.C. has been three-fold. Firstly, that the power under Section 48 of the Acquisition Act cannot be invoked and applied to the acquisition proceedings under the M.R.T.P. Act. Secondly, assuming that such a power is available, the present order of withdrawal is bad in law since the same has not been published by notification in the Official Gazette. His third submission has been that the order has been passed in gross violation of principles of natural justice, the order is perverse on the material on record and untenable, and is malafide and arbitrary. As far as the first submission of Mr. Singhvi regarding the non-application of Section 48 of the Acquisition Act to the proceedings under the M.R.T.P. Act is concerned, he took us through the relevant sections of both the Statutes and led a great emphasis on the approach of the Apex Court in Joginder Singh's case (supra). As against this submission of Mr. Singhavi, the learned Counsel appearing for the and-developer submitted that the said judgment in Joginder Singh's case ought to be confined only to the requirement under Section 11-A of the Acquisition Act. It is submitted that such restrictive approach was called for particularly in the light of the subsequent judgment of the Apex Court in the case of Mariyappa v.State of Karnataka (Supra). It was submitted that the interpretation canvassed by Mr. Singhavi would lead to a conflict between the two Statutes and that ought to be avoided. Although we have noted the submissions advanced by the rival Counsel on this point, we feel that it would be advisable to refrain from deciding it, particularly since, there is sufficient material on record to decide the matter on the other two points raised by Mr. Singhvi. We are, therefore, not expressing any opinion on this first submission.

77. As far as the second submission of Mr. Singhavi namely that the order of withdrawal was ineffective for want of publication in the Official Gazette. Mr. Dharmadhikari, learned Counsel appearing for the land-developers in Writ Petition No. 3874 of 1998, drew our attention to Para 303-B of the Manual of Land Acquisition which has been quoted earlier and also the judgment of the learned Single Judge in the case of Atmaram M. Bhoir v. State of Maharashtra (supra). Even so as far as this aspect is concerned, in our view, the controversy is no longer res integra. We have referred to the judgment of Division Bench in the case of Prakash v. State of Maharshtra, (supra) where the Division Bench has given cogent reasons as to why a notification at the time of withdrawal under Section 48 was necessary and the provisions of the Manual of Land Acquisition were at the highest guidelines. The same approach is also reflected now in the. judgment of the Apex Court in the case of Larson & Toubro, (supra). The relevant observations of the Apex Court in that judgment have also been quoted earlier hereinabove. They explain the rationale behind insisting on such a requirement of a notification at the time of withdrawal. The judgment of the Apex Court lays down the law in this behalf by reading the requirement of such a notification into Section 48 of the Acquisition Act. Inasmuch as the order of withdrawal has not been notified in the Official Gazette, it can have no legal effect. It is not possible for us to accept the submission of Mr. Dharmadhikari in this behalf.

78. The third and the most important submission of Mr. Singhavi has been with respect to principles of natural justice in arriving at the decision, perversity of the order and malafides and arbitrariness of the Minister. The learned Counsel appearing for the land-developers have submitted that the decision under Section 48 was not even a quasi-judicial decision and there was no requirement of giving a notice and hearing either to the owner or to the beneficiary. They led great emphasis on the observations in the case of Godrej & Boyce (supra) and submitted that the decision in the Larson & Toubro case (supra) ought to be read only in the context of acquisition of land for a company covered under Part VII of the Acquisition Act. It is not possible for us to accept this submission either. The approach of the Apex Court in the case of Godrej & Boyce (supra) has already been distinguished in the case of Amarnath Ashram Trust Society's case (supra). In that matter the land was being acquired for a play ground of students of a public school run by the Ashram and during the pendency of the challenge to the acquisition through a writ petition by the owner of the land, the Government de-notified the land by exercising its power under Section 48 of the Acquisition Act. The Court distinguished Godrej & Boyce's case in that judgment and noted that in the Godrej's case the challenge to the withdrawal was by the owner itself and the owner was protected under Section 48(2) of the Acquisition Act. The Court observed in the subsequent case of Larson & Tourbo (supra) that the decision in Godrej & Boyce's case was no authority laying down the propositions that in all cases where the power was exercised under Section 48 of the Act it was open to the State Government to act unilaterally and that it could withdraw from acquisition without giving any reasons or any reason whatsoever.' in Larson & Toubro's case the Apex Court quoted with approval the following observations from Amarnath Ashram's case :-

'Particularly, in a case where as a result of a decision taken by the Government other party is likely to be prejudicially affected, the Government has to exercise its power bona fide and not arbitrarily. Even though Section 48 of the Acl confers upon the State wide discretion it does not permit it act in an arbitrary manner. Though the State cannot be compelled to acquire land compulsorily for a company its decision to withdraw from acquisition can be challenged on the ground that power has been exercised mala fide or in an arbitrary manner. Therefore, we cannot accept the submission of the learned counsel for the State that the discretion of the State Government in this behalf is absolute and not justiciable at all.'

79. The same approach is reflected in a recent judgment of the Apex Court where the beneficiary was an Association registered under the Karnataka Societies Registration Act, 1961. In Para 28 of State Government Houseless Employees Association v. State of Karnataka, the Apex Court has reiterated the following observations from Union of India v. Col. J. N. Sinha, :

'..... It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the Legislature and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the Court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice.'

Thereafter in Para 32, the Court held as follows :-

'The sect'.on does not in terms exclude the principles of natural justice. However, the section has been construed to exclude the owner's right to be beard before the acquisition is withdrawn. This is because the owner's grievances are redressable under Section 48(2).'

'..... But as far as the beneficiary of the acquisition is concerned thereis no similar statutory provision. In contrast with the owner's position the beneficiary of the acquisition may by withdrawal from the acquisition suffer substantiate loss without redress particularly when it may have deposited compensation money towards the cost of the acquisition as the steps for acquisition under the Act have substantially been proceeded with. An opportunity of being heard may allow the beneficiary not only to counter the basis for withdrawal, but also, if the circumstances permitted, to cure any defect or shortcoming and fill any lacuna.'

Then in Para 33 the Court held that the right of hearing available to a beneficiary is not limited to acquisition for companies. In Para 33. the Court ruled as follows :-

'The decision in Larsen and Toubro, : [1998]2SCR339 which relied upon an earlier decision in Amarnath Ashram Trust Society v. Governor of U.P., (supra) to hold that a beneficiary has a right to be heard before a notification under Section 48(1) isissued, does not appear to be limited to acquisition for companies under Part Vll of the Act as is contended by the respondents although the acquisition in that case had been made for a company for the purpose of setting up a housing colony. Both cases have also drawn a distinction between the rights of an owner and the beneficiary of the acquisition to object to withdrawal from the acquisition for the reasons noted earlier.'

Thus the right of beneficiary like the A.P.M.C. In the present case of being heard before the passing of a withdrawal order has now been clearly laid down.

80. It is needless to state that as observed in L & T's case (supra) 'opportunity has to be given to the company to show cause against the proposed action of the State Government to withdraw from acquisition. The reasons to withdraw must be made known to the company so that it may persuade the Stale Government to reverse that decision.' As held in the case of the State Government Houseless Harijan Employees Association v. State of Karnataka (supra) the opportunity has to be given not only to counter the basis for withdrawal but also if the circumstances permitted, to cure any defect or shortcoming and fill any lacuna. In the circumstances, the State is expected to give a notice giving reasons as to why the land is proposed to be withdrawn from acquisition. In the present case, no such show cause notice was given to the A.P.M.C.. but the A.P.M.C. was merely called to attend the hearing before the Revenue Minister by sending a short notice of four days, the subject-matter of which was concerning the request by Pralhad Dodeja to delete the concerned land from acquisition. It was however not slated in that notice as to why the deletion was sought or proposed. Not only that but the application made by the land owners was also not made available to the A.P.M.C. at the time of the said hearing. That application has not even been placed on record along with the affidavit filed by the land-developers in Writ Petition No. 3620 of 1998. It is only because of the direction of the Court that the said application dated 12.11.1997 was made available in Court by the counsel appearing for the State Government. The fact that the same was not served on the A.P.M.C. Is admitted by the Desk Officer of the Revenue Department in his affidavit affirmed on 22nd June, 2000 as noted above. It was contended on behalf of the A.P.M.C. that Writ Petition No. 670 of 1996 filed by the land-owners was already pending in the High Court and hence the matter before the Minister may not be proceeded further. Yet the Minister proceeded to complete the hearing on the same day. Subsequently the A.P.M.C. received the order dated 20th May. 1998 directing the withdrawal of the concerned land from acquisition. The order specifically refers to and relies upon the Collector's report dated 16th March, 1998 which was admittedly received subsequent to the date of hearing. This is in fact specifically admitted by the Minister in Para 3 of his affidavit in reply wherein he admits that Though the hearing was conducted on 5.1.98 the order was passed after a substantial period on 20th May, 1998 after taking into consideration the record available before the State Government and the letter of the Hon'ble Collector, Pune dated 16th March 1998.'

81. From the narration as above, it is very clear that the A.P.M.C. was called for a hearing before the Minister only as a formality. It was not given any notice to show cause communicating the reasons for withdrawal. A copy of the land-owners' representation dated 12th Novem-ber, 1997 which was the basis of that proceeding was admittedly not made available to the representatives of theA.P.M.C.. There quest made by them that the matter may not be proceeded since Writ Petition No. 670 of 1996 was pending in the High Court was turned down and the Minister proceeded to complete the hearing on the very date. Although the hearing was concluded on that date, the Minister took into consideration the report of the Collector received much thereafter and which has been made the basis of the impugned order passed on 20th May. 1998 and admittedly a copy of that report has not been given to the A.P.M.C. Thus the beneficiary was not furnished in writing the grounds on which the action of withdrawal was proposed, the matter was proceeded there and then on the returnable date in a hurry and on the top of it the Minister took into consideration as the relevant factor some material behind the back of the aggrieved party, something he could not take into account since the hearing had already been concluded. It is true that the proceeding under Section 48 is an administrative proceeding, but it is a proceeding wherein the valuable rights of the beneficiary are at stake. The hearing to be afforded to the beneficiary is not expected to be an empty formality. The emphasis on affording this opportunity of being heard led by the Apex Court in the above-referred judgments is to make it a meaningful exercise. The manner in which the Minister has proceeded with the enquiry leaves us in no doubt that he has proceeded in gross violation of the principles of natural justice.

82. The other limb of the grievance of Mr. Singhavi has been that the impugned order is perverse and not supported by the material on record. Two grounds have been given in the impugned order for directing withdrawal of this land from acquisition. As stated above, one ground has been that right from 1977 till 1995 theA.P.M.C. was not authorised to deal in bamboo and fire wood. In Para 4 of his order, the Minister has referred to the fact that by Notification dated 6th February, 1995. bamboo and fire wood has been included in the coverage of the A.P.M.C. but subsequently the State Government has stayed implementation thereof by its direction dated 20th June, 1995. The Minister has, therefore, faulted the Land Acquisition Officer for acquiring the land for that purpose. Now the stay granted by the State Government was already lifted by it on 18th February, 1997 and there is a specific mention of this fact in Para 6 of the representation of A.P.M.C, dated 3-1.1998 filed before the Minister. The A.P.M.C. has stated in that paragraph as follows :-

'This land was reserved in the Pune City Development Plan for the Marketing Committee for the trade in agricultural products like bamboo. It is the objection of the land-owners that bamboo is not an item within the jurisdiction of the A.P.M.C.. The fact however is that after filing of the above Writ Petition (i.e. Writ Petition No. 670 of 1996) the stay on this trade has beenlifted on 18.2.1997 and therefore the Marketing Committee is capable of bringing trade of this agricultural produce under its control. Thus the land can be utilised for the purposes for which it was reserved in the development plan.'

A copy of the notification lifting the stay on the bamboo trade was annexed at item No. 9 of the list of supporting documents enclosed with this representation. It is not disputed that this representation dated 3rd January, 1998 along with these annexures was very much on the file of the Minister. Not only that but as pointed out earlier in Para 14 of written arguments of the land-developers, it is specifically stated as follows :-'The land-owners state that they recently were told that on 18.2.1997 or thereabout the stay granted by letter dated 23.6.1995 was vacated.'

These written arguments were tendered to the Minister by the land-owners on the date of hearing. This material was very much before the Minister and yet he has chosen to ignore it and referred to the prior position and, therefore, held that the acquisition for that purpose is not legal. Thus the Minister has not taken into consideration the material which was placed before him and has chosen to accept that material which was no longer valid. Mr, Thorat, learned Counsel for the Minister sought to explain this as only a mistake. It is not possible to take such a pious view of the action of the Minfster. The Minister was surely assisted by all the concerned officers of his department- The latest position with respect to the coverage of bamboo and fire wood by the A.P.M.C. was placed before him in writing by the A.P.M.C. and it was not disputed by the land-developers themselves. Yet the Minister has thought it fit to ignore the correct position placed on record and to refer to the prior position. The Minister has drawn a conclusion contrary to the material placed by the beneficiary and which is not disputed by the land-developers. This conduct on the part of the Minister cannot be considered as an innocent act or mistake but it is a deliberate decision. It is relevant to note in this behalf that neither the affidavit of the State Government nor the Minister have explained as to how and why the relevant material placed on record by the A.P.M.C. was ignored.

83. Not only this, but it is relevant to note that the other basis of the order is that the land is not required by A.P.M.C. and the land allotted to it is mis-utilised by it. The Minister has held that the A.P.M.C. has used the land for activities such as Beer Bar, hotel and restaurant. Now it is pertinent to note that in the representation of the land-owners/developers dated 12th November. 1997 there is no such reference to any such activity. That reference is to be found in the written arguments tendered on that date by them. In Para 17 of these written arguments, there is a reference to a public interest petition filed by one Sharad Joshi, supposed to be an eminent agricultural activist in the State of Maharashtra. Then it is stated that in the petition of Shri Sharad Joshi instances were also shown about distribution of land for hotels, beer bars, restaurants. Mangal Karyalayas, etc. Except for this averment in the written arguments there was no other material before the Minister on that date of hearing viz. 5th of January. 1998. What Is interesting to note is that in the affidavit filed by the Desk Officer, Revenue Department, affirmed on 22nd June. 2000 in Writ Petition No. 3620 of 1998 it is recorded thatat the time of hearing the Hon'ble Minister had observed that the A.P.M.C. had used some of the portions of the building constructed in Hie area which was acquired for them for beer bar, hotel and restaurant and was not used for the purpose for which it was acquired. The Statement of the Desk Officer that the Minister made such observations is not contradicted by the Minister though he has chosen to file an affidavit. Now one does not know as to on what basis the Minister made such observations during the course of the hearing unless he was accepting the hearsay contained in land-developers' written arguments on its face value.

84. The Minister closed the hearing on the very date. Thereafter he received the report of the Collector dated 16th March, 1998. He has taken this report into consideration without issuing any notice to the A.P.M.C. after receiving the report. That report also has been used very conveniently by the Minister. The Collector has pointed out in his report that he had cancelled the permission for beer bar but the said party had gone to the High Court. Now, as far as hotel and restaurant are concerned, it has been the stand of the A.P.M.C. that considering the volume of trade and visitors to the market, the facilities of hotel, restaurant and ancillary services could not be objected. In any event, further proceedings have been taken in Court and no action has been taken against the A.P.M.C. on that ground. As far as beer bar is concerned, now the rules have been changed and beer bars are no longer allowed in the market yard. The Minister was expected to have a sense of proportion and ought to have considered all these aspects. The market yard is spread over 153 acres and as per the chart enclosed to the affidavit in Writ Petition No. 3620 of 1998, by year 1999 there were more than 2000 shops and the number of daily users of the market was in the range of 50,000. Surely, they needed facilities like hotels and restaurants. Then also how many hotels and restaurants have been put up and that too in how much area is also an aspect which ought to have been looked into. As far as beer bar is concerned, the Collector's report categorically stated that the permission had been cancelled but the party had gone to the High Court. On the basis of this information, which is received subsequent to the date of hearing, the Minister has drawn the second conclusion that the concerned land was not required by the A.P.M.C.. If the Minister was to afford an opportunity to the A.P.M.C.. it would have given the particulars of the total number of shops in the market, the number of daily visitors and how many hotels have been put up in how much area. It would have also pointed out as to how the disputed land was required for setting up of the trade of the Burud community which deals in bamboo and fire-wood and which community belongs to the weaker section of the society. The Minister himself could have obtained that information from his department. On the other hand at the time of the hearing itself he was observing that the A.P.M.C. was mis-utilising the land for hotels and beer bar and the report received from the Collector subsequent to the date of hearing has been utilised by him for the convenient conclusion. The order passed by the Minister is on two grounds, firstly, that the A.P.M.C. was not competent to deal in bamboo trade and secondly that it did not need any land and it had mis-utilised the land allotted earlier. The first ground intentionally ignores the correct legal position though placed before the Minister and places reliance onearlier legal position in this behalf. The second ground is on the basis of a distorted interpretation of the Collector's report holding that the land allotted to the A.P.M.C. was utilised for beer bar and hotel. These conclusions are not at all justified by the material on record. This leads us to only one conclusion namely that the order passed by the Minister is perverse.

85. The third submission of Mr. Singhavi has been that the order of withdrawal is vitiated by arbitrariness and malafides. There is a specific allegation in Para 24 of Writ Petition No. 3620 of the 1998 that the land developer - Shantilal Mutha, who is an Influential person, business man and builder, has used his influence and obtained the impugned order of deletion from the Minister. There is of course a denial of this allegation and a great emphasis has been led by the Counsel appearing for the land-developer and the Minister that there are no particulars provided in support of this allegation. As pointed out above, it is submitted by relying upon the authorities on behalf of the Minister that seriousness of such allegations demands proof of a high order of credibility (from E.P. Royppa's judgment (supra)), that the Courts cannot uphold the plea of malafides on the basis of mere probabilities (A. Periakaruppan's Judgment (supra)), that if necessary particulars are not given, High Court would be justified in rejecting the allegations of malafide (Tara Chand's judgment (supra)), that source of knowledge has to be disclosed with sufficient particulars (Sukhwinder Pal Bipan Kumar's judgment (supra)) and that inference to be drawn must be used on factual matrix and it cannot remain in the realm of insinuation, surmise or conjecture CM. Sankaranarayanan's judgment (supra)).

86. There cannot be any quarrel with any of these propositions. However, we have the following undisputed facts on record (1) The A.P.M.C. was given a short notice of just four days to appear before the Minister. (2) Although the subject-matter mentioned in the notice was concerning a request of the land-owners to delete the concerned land from the acquisition, no copy of the application made by the land-owners was enclosed with the notice. (3) No reasons were given in the notice as to why the land was proposed to be withdrawn. (4) A copy of the application made by the land-owners to the Minister was not given to the A.P.M.C. even at the time of the hearing. (5) In Para 4 of the reply filed by the A.P.M.C., a specific reference was made to the fact that the land-owners had filed Writ Petition No. 670 of 1996 in the Bombay High Court and that the same was pending. The Minister did not deem it necessary to wait for the judgment of the High Court in the matter and proceeded to complete the hearing on the same day itself. (6) The Minister observed during the course of the hearing that the A.P.M.C. had used some of the portions of the building constructed for beer bar, hotel and restaurant. These observations were made apparently on the basis of the written arguments filed on behalf of the land-owners/land-developers which referred to the statements made in another writ petition filed by one Sharad Joshi. The statement on oath made by the Desk Officer of the Government to this effect is not denied by the Minister. (7) The report received from the Collector, Pune much subsequent to the concluding of the hearing was relied upon in the final order passed by the Minister against the A.P.M.C.This is accepted by the Minister in his affidavit. The final order was passed without giving any further Notice to A.P.M.C. or any opportunity to say with respect to that report. (8) Information furnished by the Collector was conveniently twisted by the Minister and was made a basis for giving a finding against the A.P.M.C.. (9) The report did not state as to how many restaurants were put up and how much area was utilised for them and yet the Minister concluded that the disputed land was not needed by the A.P.M.C., (10) The Minister came to the conclusion that the A.P.M.C. did not have authority to deal into the trade of bamboo and fire wood on the basis of the stay granted by the State Government on 20th of June. 1995. The Minister however ignored the Notification dated 18.2.1997 placed on record by the A.P.M.C. lifting the stay granted by the Government and which fact was accepted by the land-developers in Para 14 of their written arguments. (11) The Minister did not confine himself to the application for withdrawal of the concerned land from the A.P.M.C. made by the land-owners. He proceeded to pass a wider order directing the Collector to hold an enquiry against the A.P.M.C. to withdraw the land utilised by the A.P.M.C. for the purposes other than that of A.P.M.C.. (12) Within about a month from the passing of this order the A.P.M.C. was superseded and an Administrator was appointed. Writ Petition No. 3874 of 1998 alleges that this was done by Minister Rane on the influence used by Mr. Mutha. Although Minister Rane had denied this allegation, Mr. Mutha has not. From these facts, can one not deduce a reasonable and inescapable inference of bad faith and prejudiced attitude? What more particulars are required?

87. Therefore, comes the natural question as to why the Minister should proceed in such a hurry, ignore the legal provisions placed on record, consider a report which is received after concluding the hearing and pass sweeping -orders. Can we be so naive to hold that there is no connection between the interest of the land-developer Shri Mutha in this large plot of land in the prime area of the city and the decision of the Minister? This is a plot for which an amount of over Rs. 26 Lakhs was awarded by way of compensation in the award passed way back in November, 1989 and for which the land-developer had put in just an amount of Rs. 50.000/ -by way of earnest money. It is only after the land-developer coming into the picture that the matter has been followed initially by filing a civil suit and (hereafter a writ petition. The plaint is affirmed by the land-developer Shri Mutha. Even in the petition filed by the A.P.M.C. and by its members it is only the land-developer who has filed his affidavit-in-reply and not the land-owners. It is the land-developers who have brought on record through their written arguments before the Minister that one Sharad Joshi. leader of the agriculturists, had filed a writ petition and wherein there was a reference to the beer bar and restaurant. This information was never placed on record by the landowners earlier in the suit or in Writ Petition No. 670 of 1996. In fact they never cared to lodge any objections when the land was reserved way back in May, 1976. They did not bother to contest the acquisition notices. It is only when Shri Mutha took the interest that in September/October 1989 Shri Mutha wrote, to the then Chief Minister on their behalf to delete the land from reservation. Later when possession was sought to be taken thesuit has been filed also affirmed by Shri Mutha. It can always be said that Shri Mutha was only following up the matter. However, when one sees the speed with which the Minister Shri Rane moved Into the matter violating the principles of natural justice, made one sided observations during the proceedings and subsequently used Collector's report behind the back of A.P.M.C. and finally passed the order ignoring legal provisions and even pendency of an earlier writ petition, one cannot but draw an inference that there is a connection between the two. From what is narrated above, in our view, there is sufficient material to justify the submission of the A.P.M.C. that but for the influence exerted by Shri Mutha, the Minister would not have passed the order that he passed. In this connection, it is also relevant to note that in Writ Petition No. 3874 of 1998. there is a clear allegation that because of this Influence Minister Shri Rane moved to supersede the A.P.M.C, on 6th July 1998 just after one month from the withdrawal of order dated 20th May, 1998. It was specifically alleged that the supersession was with a view to withdraw Writ Petition No. 670 of 1996 through the Administrator. It is material to note that although Shri Rane has chosen to deny this allegation, Mr. Mutha has not filed any affidavit to controvert it. All this chain of facts cannot be brushed aside as mere probability. Doing so will also be Ignoring the hard reality of shortage of urban land and the high stakes involved therein. In this connection, a reference to the judgment in the case of S. Partap Singh v. State of Punjab,' is quite apt. In Para 8 of the majority judgment of the Constitution Bench, it has been observed as follows : -

'Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by Government of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person in the position of a minister apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It cannot however be said that malafide in sense of improper motive should be established only by direct evidence, that is that it must be discernible from the order impugned or must be shown from the notings in the file which preceded the order. If bad faith would vitiate the order, the same can be deduced as a reasonable and inescapable inference from proved facts.'

(emphasis supplied)

88. The Minister ought to have noted that the A.P.M.C. had deposited the required amount in November, 1990 and by the time he had passed his order in May, 1998 more than 7 and 1/2 years had passed since then. He ought to have considered the loss suffered by the Public body- the A.P.M.C. on this count and the wrong signal that such an order would send. In the process of development planning, various requirements of society are considered and a number of competent officers are Involved. They decide about the reservation after hearing all concerned, thereafter the process of acquisition takes place giving full opportunity to all concerned. Ordinary people without means like the Burud's and fnstitutions like A.P.M.C. wait for years for this process to complete. Whatever that is done by years of such effort is sought to be undone by an arbitrary order passed by the Minister. Power given to the Government is meant to be exercised bonafide and judiciously or else people will develop a feeling that whatever may be done by competent officers by following dueprocess, orders can still be obtained at high level by influential persons. In a democracy that cannot be the signal. The general direction given by the Minister about the other lands was sought to be explained as an order by the Head of the Department. In fact in that capacity he should have taken an over-all view and protected the acquisition which was meant for bamboo trade wherein a weaker community viz. that of Burud was concerned. He however passed a general direction to recover all the lands from A.P.M.C. wherein there was alleged misuse. That was not even the subject of the application before him. This clearly showed his malafjdes. In the circumstances, we cannot but hold that the order passed by Shri Narayan Rane, the then Revenue Minister is in gross violation of principles of natural justice, is a perverse order, without any supporting material, and is actuated by malafides and is nothing short of misuse of powers to favour the land-developers. By looking to the totality of the material on record that is the conclusion which is inescapable.

89. The aforesaid narration makes a sad reading. We have a Minister of Revenue who does not consider the material placed before him, but considers the Information which has come on record subsequent to the conclusion of hearing. He has courage to state on affidavit that though the hearing concluded on 5.1.1998. he passed the order after a substantial period on 20th May, 1998 after taking into consideration the record available before the Government and the letter/report of the Collector dated 16th March. 1998.We have a Minister who was making observations during the proceeding that the concerned land was being mis-utilised though there was no material whatsoever except the reference to such allegation in another writ petition to which a reference was made in the written arguments of the land-owners. Thus we have a Minister who has no regard for the principles of natural justice or fair play or else he would not have passed the kind of order which he has passed. Why should he do this except for the reasons alleged in the petition namely the influence exercised by Shri Mutha who has just put in the earnest money of Rs. 50.000/- to claim a large plot of 1 Hectare and 34 Ares in the prime area of the city for which the compensation under the award of 1989 was over Rs. 26 Lakhs? This is obviously to favour the land developers. It shows that the Minister does not have any concern for the planning process where under a number of authorities apply their mind and thereafter reserve the land according to the requirements of the society. The Minister does not seem to have any regard for the judicial process also inasmuch as although a writ petition was pending in this Court concerning the very controversy, for the benefit of the land-developers he has tried to over-reach the judicial process. Last but not the least, he does not seem to have any concern for the weaker sections of the society like the Burud community for whom the plot was reserved. Obviously the land-developer was more relevant for the Minister thanA.P.M.C. or these people who are on the fringe of the society and that must be for the reasons best known to the Minister.

90. In the circumstances, we have no hesitation in setting aside the order dated 20th May, 1998 passed by the then Revenue Minister Shri Narayan Rane on behalf of the then Government. Rule is accordingly made absolute in terms of prayer clause (b) of Writ Petition No. 3620 of 1998. It also takes care of prayer clause (b) of Wrt it Petition No. 3874 of 1998.

91. That brings us to the question of costs. Writ Petition No. 670 of 1996 has already been dismissed. That petition sought to challenge the notification of the State Government under Section 126(2) of the M.R.T.P. Act issued way back on 3rd December 1987 and the acquisition proceedings concluded in November 1989. The A.P.M.C. had in the meanwhile deposited a substantial amount of over Rs. 26 lakhs with the State Government in November. 1990. Due to the pendency of this petition thereafter for nearly ten years the cause of the A.P.M.C. and the Burud community continued to suffer. The matter appeared in Court from time to time and the final hearing of this petition went on for over a week. The A.P.M.C. is financially sound however it is answerable to its members. In the circumstances, in our view, we will be justified in awarding the costs of Rs. 25.000/- to respondent No. 5 which is hereby awarded in Writ Petition No. 670 of 1996. The other respondents will bear their own costs. As far as Writ Petition No. 3620 of 1998 is concerned that became necessary because of the application filed by respondent Nos. 5, 6 and 7 and followed up by respondent No. 7 which was entertained by respondent No. 4 Minister. In this mater also, for the same reason, we award the costs of Rs. 25.000/- to the petitioners- A.P.M.C. which will be payable by respondent No. 7. As far as Writ Petition No. 3874 of 1998 is concerned, it became necessary due to the genuine apprehension which the petitioners of this petition felt in view of the appointment of an Administrator over the A.P.M.C. within a month after service of the order dated 20th May, 1998. They feared that Writ Petition No. 3620 of 1998 was likely to be withdrawn and, therefore, they had to file this petition. The Division Bench which admitted this petition was satisfied with respect to the genuineness of the apprehension felt by the petitioners Rajendra Khandwe and others. Only because of filing of (his petition, an assurance appears to have been given that Writ Petition No. 3620 of 1998 will not be withdrawn. These petitioners are however espousing the cause of A.P.M.C. and their petition was heard along write .Writ Petition No. 3620 of 1998. Hence no separate costs are awarded to these petitioners. All the three petitions are accordingly disposed of.

CONTINUATION SHEET NO.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

WRIT PETITION NO. 670 OF 1996 AND

WRIT PETITION NO. 3620 OF 1998 WITH WRIT PETITION NO. 3874 OF

1998

Office Notes, Office Memoranda of : Courts or Judge's orders.

Coram, appearances. Court's orders :

or directions and Registrar's:

orders:

Coram : Mr. Justice P. S. Patankar & Mr. Justice H. L. Gokhale. P.C. :

1. The learned Counsel for the land-developers and land-owners apply for stay of this judgment and continuation of the stay granted in Writ Petition No. 670 of 1996 since they would like to challenge this order. In this judgment, we have only followed the law laid down by the Apex Court and hence we see no reason to stay its operation. The Special Land Acquisition Officer will, therefore, take possession of this plot of land and hand over it to the A.P.M.C. The A.P.M.C. may proceed further with other procedural aspects regarding construction and allotment of the stalls though it may not start with actual construction for a period of 12 weeks from today.

2. Authenticated copy of this judgment be made available to all the parties and the Special Land Acquisition is expected to act on the authenticated copy.


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