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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3769 OF 2001
...
Dnyaneshwar Math Trust …Petitioner
v/s.
1. State of Maharashtra
2. S.L.A.O.
3. Hindi Prachar Mandal
4. Mr.Sankata Prasad Singh
5. Mr.Chandrajit Singh …Respondents
…
Mr.Jai Chinoy i/b Ashoka Law Firm for the
Petitioner.
Mr.C.R.Sonawane, AGP for State.
Mr.P.M.Pradhan for Respondent No.3.
…
CORAM: D.K. DESHMUKH &
A.R.JOSHI,JJ
DATED: 11th March,2010
JUDGMENT: (PER D.K.DESHMUKH, J.)
1. The Petitioner by this petition
challenges the notification issued under
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Section 6 of the Land Acquisition Act
compulsorily acquiring its land .
2. The facts that are relevant and
material for deciding this petition are that,
the Petitioner is a Public Trust registered
under the Bombay Public Trust Act, 1950. It
carries on various educational, cultural,
social,
ig charitable and educational
activities at Dombivli. The Petitioner in the
year 1950 by a sale-ded dated 9-4-1930
purchased the plot of land admeasuring 260
sq.meters at Dombivli (West). The Trust in
the year 1955 permitted Rashtra Bhasha
Shikshan Mandal (RBSM) to run a school on a
portion of the aforesaid plot of land. In the
year 1967, Civil Suit No.472 of 1967 was
filed against the RBSM for a decree of
possession. The suit was decreed in favour of
the Petitioner on 5-6-1972 by the trial
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court. First Appeal filed against that decree
was dismissed by the Appellate Court on
28-7-1975. Second Appeal preferred against
the decree of possession was dismissed by
order dated 14-9-1981 passed by this Court.
It appears that the Respondent No.3-Hindi
Prachar Mandal Trust approached the State
Government for acquisition of that land under
the Land Acquisition Act for the benefits of
the Respondent No.3. A notification under
Section 4 of the Land Acquisition Act was
issued on 9-5-1984. The Petitioner initiated
execution proceedings against the RBSM on
11-6-1984. The present Respondent No.4-
Mr.Sankata Prasad Singh obstructed the
execution proceedings. The Obstruction
Proceedings, however, were rejected by the
Executing Court by order dated 8-7-1987. The
Appeal was filed against those orders. That
Appeal was also dismissed. Writ Petition
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filed against those orders was also dismissed
by this Court. Then, the Respondent No.3
filed Civil Suit No.431 of 1985 claiming an
injunction restraining the Petitioner from
evicting him and for decree of possession.
Though, initially some interim order was made
in favour of the Respondent No.3 in that
suit, but subsequently it was vacated.
Against that order Appeal was filed before
the Appellate Court. That was rejected. Writ
Petition No.4378 of 1987 filed against that
order was also rejected. On 17-6-1991
ultimately possession of the property was
handed over to the Petitioner. It appears
that while these proceedings were pending, a
notification under Section 6 was issued on
7-5-1987 compulsorily acquiring the land for
the benefits of the Respondent No.3. Writ
Petition No.3869 of 1987 was filed by the
Petitioner in this court challenging the
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acquisition. During the pendency of that Writ
Petition, the Land Acquisition Officer passed
an award on 17-2-1989. By order dated
1-12-1997, the Joint Director of Education
cancelled the recognition and permission
granted to the Respondent No.3 for running a
school. A writ petition being Writ Petition
No.3355 of 1997 was filed in this Court
challenging
that order. But that Writ
Petition was dismissed by the Division Bench
of this court by judgment dated 22-4-1998.
The Petitioner in the meanwhile made an
application under Section 48 of the Land
Acquisition Act for deleting the land from
acquisition. On that application, an order
was made by the Commissioner dated 20th April,
1999 dropping the acquisition proceedings. As
the acquisition proceedings were dropped, the
Writ Petitions challenging the notification
and the award were withdrawn. By order dated
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7-12-2000 passed in Writ Petition No.144 of
2000, the Division Bench of this court
allowed the petition challenging the order by
which the acquisition proceedings were
dropped on the ground that the order was not
published in the official gazette and that
the order was made without granting the
Respondent No.3 an opportunity of being
heard. The Petitioner, therefore, has filed
this petition challenging compulsory
acquisition of its land. It is to be
mentioned here that in the official
development plan, Site No.58 which is the
suit land was reserved for primary school and
the appropriate authority was shown as
Respondent No.3. By notification dated 3rd
August, 1998 which was published in the
official gazette on 13th August, 1998, the
Petitioner has been described as an
appropriate authority in relation to site No.
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58, which is reserved for a primary school.
One more fact that is to be noted is that it
appears that in order to facilitate
acquisition of the property for the benefits
of the Respondent No.3, by order dated 20th
March, 1984 formal grant of Rs.100/- was
sanctioned for the building of the school of
the Respondent No.3. That order was cancelled
by the State Government by order dated 1st
December, 1997.
3. We have heard the learned Counsel
appearing for the Petitioner and the learned
Counsel appearing for the Respondents,
including Respondent No.3.
4. Perusal of Notification issued under
Section 4 of the Land Acquisition Act dated
9th May, 1984 shows that there are two reasons
given by the Special Land Acquisition Officer
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for proposing to acquire the land. First
reason was Whereas, it appears to the
Special Land Acquisition Officer, Special
Unit, Town Planning and Valuation Department,
Thane, that the lands specified in the
schedule hreto are likely to be needed for
the Hindi Prachar Mandal Trust, Dombivali,
for construction of a School Building. This
was said
because in the draft Development
Plan, Site No.58 i.e. the suit land was
reserved for school and the appropriate
authority was shown as Respondent No.3. i.e.
Hindi Prachar Mandal Trust. However, by
notification dated 3rd August, 1998, which is
published in the official gazette dated 13th
August, 1998, the Development Plan has been
modified and now the relevant entery reads
the appropriate authority in respect of Site
No.58 is changed from Hindi Prachar Mandal
Trust to that of Dnyaneshwar Math Trust in
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Development Plan . Thus, now in the
Development Plan appropriate authority in
relation to Site No.58 is not the Respondent
No.3, but it is the Petitioner, and therefore
that first reason given for acquiring the
land compulsorily for the benefits of the
Respondent No.3 does not any more exist. Now,
in relation to Site No.58, the Petitioner who
is the owner
ig of the land itself is the
appropriate authority. It is further to be
seen that in paragraph 38 of the Petition,
the Petitioner has stated that by order dated
26th May, 1997 recognition to the school of
the Respondent No.3 has been cancelled by the
Education Department, and that by letter
dated 19th July, 1997 the Respondent No.3 has
been asked to close down the school. It
appears that these orders were challenged by
the Respondent No.3 before this court by
filing Writ Petition No.3355 of 1997. That
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Writ Petition has been decided by the
Division Bench of this Court by order dated
22-4-1998. Perusal of that judgment shows
that recognition was cancelled because of
failure of the Respondent No.3 to comply with
the conditions of recognition despite several
notices and show cause notices given by the
authorities. The court found that
deficiencies pointed out by the authorities
still exist in the school of the Respondent
No.3, and therefore, recognition was rightly
cancelled. In paragraph 39 of the petition,
reference has been made to the judgment of
the Division Bench in Writ Petition No.3355
of 1997.
5. The second reason which weighed with
the Special Land Acquisition for acquiring
the land compulsorily, as can be seen from
the notification under Section 4 referred to
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above, is that Whereas the compensation to
be awarded for the said lands are to be paid
partly out of public revenue. Now, as a
reason of cancellation of the order dated 28th
March,1984 by order dated 1st December, 1997
no grant for the purpose of building is being
paid by the Government to the Respondent No.
3. Therefore, no part of the compensation to
be paid for acquiring the land is going to be
paid from the public fund, and therefore,
really speaking now there will be no public
purpose for acquiring the land. It has come
on record that the Petitioner itself is a
Public and Charitable Trust. It owns the land
adjoining to Site No.58, which is suit site
and on that land the Petitioner is presently
running a school. In our opinion, therefore,
as the Petitioner itself is running a school
on the adjoining plot of the land, there can
be no justification for acquisition of Site
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No.58 for establishing another school when
the land is likely to be needed by the
Petitioner itself for expansion of its own
school.
6. In our opinion, looking at the matter
from any point of view, there is no
justification to uphold the compulsory
acquisition of the land for the benefits of
the Respondent No.3. In our opinion, petition
deserves to be allowed. It is accordingly
allowed. Rule made absolute in terms of
prayer clause (a). No order as to costs.
( D.K. DESHMUKH,J.)
( A.R.JOSHI,J)
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