S.M. SIKRI, C.J.
1. This appeal by certificate of fitness granted by the High Court of Judicature at Bombay, Nagpur Bench, is directed against its common judgment in Special Civil Applications Nos. 504 of 1967 and 506 of 1967. This appeal was heard along with Appeal No. 2139 of 1968, in which we have just delivered judgment. Apart from the points raised in that appeal, the only additional point which arises in this appeal is whether Section 68 of the Nagpur Improvement Trust Act, 1936—hereinafter referred to as “the Improvement Act”—has been violated. This point is not dealt with in the judgment of the High Court. It may be, as contended by the appellants in their statement of the case, that this point was abandoned by the petitioners in the High Court. Be that as it may, we see no force in the point.
2. In their petition under Articles 226 and 227 of the Constitution, it was alleged that “the Petitioner 1 on behalf of the petitioners made an application on November 1, 1966, to the Respondent 1 for abandonment of the land and he also offered to comply with all the conditions and pay development charges, if any, and for permission to convert it for housing purposes”. In their application, dated November 1, 1966 to the Trust, it was stated that the applicants' property or part thereof was not covered by the Improvement Trust Scheme and this could be released from the scheme. It was, therefore, requested that the applicants' property or part thereof should be abandoned without acquiring it and that the applicants were ready and willing to comply with the terms which may be imposed by the Improvement Trust in that behalf and were ready to execute an agreement for the purpose.
3. It appears that the Improvement Trust wrote to the Land Acquisition Officer, Nagpur, on November 15, 1966 intimating to him that the application for abandonment was under consideration and that the matter would be intimated to him in due course. The Land Acquisition Officer was also requested to stay further proceedings for a period of three months.
4. On March 17, 1967 the Land Acquisition Officer passed the following order:
“Nothing is heard referring abandonment proposals from the Trust though 3 months statutory period of adjournment as per reminder under Section 68 is passed.”
5. It is the contention of the respondents that as soon as the application under Section 68 of the Improvement Act is admitted under Section 68, there is a presumption that the land is not necessary for the scheme of improvement and it is not necessary to acquire it, and the Trust is bound to proceed under sub-section (3) for fixing the conditions of the abandonment of the propriety which was to be acquired.
Section 68 reads thus:
“68. (1) Wherever in any area comprised in any improvement scheme under this Act the State Government has sanctioned the acquisition of land which is subsequently discovered to be unnecessary for the execution of the scheme, the owner of the land, or any person having an interest therein, may make an application to the Trust requesting that the acquisition of the land not required for the purposes of the scheme should be abandoned on his executing an agreement to observe conditions specified by the Trust in respect of the development of the property and to pay a charge to be calculated in accordance with sub-section (2) of Section 69 of the Act.
(2) The Trust shall admit every such application if it—
(a) reaches it before the time fixed by the Deputy Commissioner under Section 9 of the Land Acquisition Act, 1894, for making claims in reference to the land; and
(b) is made by any person who has an interest in the land or holds a lease thereof, with an unexpired period of seven years.
(3) On the admission by the Trust of any such application, it shall forthwith inform the Deputy Commissioner; and the Deputy Commissioner shall thereupon stay for a period of three months all further proceedings for the acquisition of the land, and the Trust shall proceed to fix the conditions on which the acquisition of the land may be abandoned...”
6. Before an applicant can make an application under sub-section (1) of Section 68 it must be proved that the acquisition of land included in the area comprised in any improvement scheme has been subsequently discovered to be unnecessary for the execution of the scheme. There is no proof of this except that the Trust entertained the application. The reply of the Trust is that by its memo, dated November 15, 1966, it merely informed the petitioner that the application had been received and was under consideration.
7. We agree with the contention of the learned Advocate-General that this entertainment of the application does not prove that it had been subsequently discovered that the acquisition of the land was unnecessary for the execution of the improvement scheme.
8. There is, therefore, no merit in the point. Following our judgment in Nagpur Improvement Trust v. Vithal Rao1 on other points, the appeal is dismissed, but in view of the fact that the respondents in this case have lost on the point regarding violation of Section 68, there will be no order as to costs in this appeal.