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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1010 OF 1992
1] Parmanand Shamrao Potdukhe,
2] Deleted,
3] Abhay Shamrao Potdukhe,
4] Smt. Shantabai Shantaram Potdukhe,
All residents of Balaji Ward,
Chandrapur. ..... PETITIONERS
....Versus....
1] Special Land Acquisition Officer,
Thermal Power Station-II,
Chandrapur,
2] Municipal Council, Chandrapur,
through its Chief Officer,
Chandrapur,
3] State of Maharashtra, through Secretary,
Revenue Department, Mantralaya,
Bombay-32, ...... RESPONDENTS.
Mr. H.V. Thakur, Advocate for petitioner,
Mrs. B.H. Dangre, Additional Government Pleader for respondent
nos. 1 & 3,
Ms. K. Satpute, Advocate for respondent no. 2.
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CORAM : S.A. BOBDE & M.N. GILANI, JJ.
DATED : OCTOBER 17, 2011.
ORAL JUDGMENT (PER S.A. BOBDE, J.)
1] Heard the learned Counsel for the parties.
2] The petitioners are owners of Survey No. 34/3, area 0.41
ares situated at Mouza Chandrapur, Rayatwari, Patwari Halka No. 8,
Bandobust No. 29, Tq. & District Chandrapur. The land is situated in
the area called Ram Nagar. Acquisition proceedings were initiated
under Section 126 of the Maharashtra Regional & Town Planning Act,
1966 (hereinafter referred to as “the Act”) in respect of the said land
for the purpose of construction of a primary school. The adjoining
land, i.e. Survey No. 34/1 was also made the subject of the
acquisition for the same purpose. Apparently, on 4.9.1997 after the
award was passed, the Municipal Council, Chandrapur passed a
Resolution that it does not wish to proceed with the acquisition of
adjoining Survey No. 34/1 admeasuring 2387 sq. meters and
demanded a sum of Rs. 5.32 Lakhs back from the Land Acquisition
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Officer who had been earlier given that amount for the acquisition of
land. Relying on this Resolution, Shri H.V. Thakur, the learned
Counsel for the petitioners, submitted that the Municipal Council has
abandoned the acquisition in respect of the petitioners’ land also, i.e.
Survey No. 34/3 and the respondents are, therefore, not entitled to
take over possession of the land, which according to the petitioners,
has not yet vested in them.
3] It is not possible to accept this contention. The Resolution
does not state anywhere that the respondents do not wish to acquire
the petitioners’ land which is Survey No. 34/3. The Resolution only
refers to Survey No. 34/1 in respect of which the Municipal Council
decided to abandon acquisition. Shri H.V. Thakur, the learned
Counsel for the petitioners, however, submitted that the Resolution
shows that the respondents have demanded back the entire amount
of Rs.5.32 Lakhs which was meant for acquisition of both the lands,
i.e. adjoining land Survey No. 34/1 and the petitioners’ land Survey
No. 34/3 and, therefore, the respondent Municipal Council must be
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taken to have abandoned the acquisition in respect of the petitioners’
land also.
4] We find that merely because the Resolution demands the
entire sum back from the Land Acquisition Officer, it does not change
the main thrust of the Resolution and that is that the Municipal
Council has resolved to abandon the acquisition of Survey No. 34/1
only which is clearly mentioned therein. Indeed, it was contended on
behalf of the Municipal Council, Chandrapur by Ms. Satpute, the
learned Counsel that the amount of Rs.5.32 Lakhs is mentioned by
mistake. We, therefore, reject this contention on behalf of the
petitioners.
5] It was next contended on behalf of the petitioners that
though the stated purpose of acquiring the petitioners’ land was for
construction of a primary school, in the present Draft Development
Plan published in April, 2011, the reservation of the land is shown for
the purpose of dispensary which is not the same purpose for which it
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was acquired, namely, for a primary school. According to the
petitioners, as a matter of law, the stated public purpose of the
acquisition must continue to exist till the award is passed and the
possession is taken and since the Municipal Council has evinced an
intention to reserve the land in question for another public purpose,
i.e. for dispensary, the acquisition is vitiated.
6] It is not possible to accept this contention since the public
purpose may undergo a change because of change in the need of the
town or city and yet the purpose for which the land is acquired may
remain a public purpose. In any case, such a contention has been
rejected by the Supreme Court in Municipal Corporation of Greater
Bombay .vs. Industrial Development Investment Co. Pvt. Ltd.
and others reported in (1996) 11 SCC 501 wherein in paragraph
no.22 the Supreme Court has observed as follows :-
“22. 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
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change of the user or change of the user in the Scheme
as per the approved plan. It is seen that the land in Block
‘H’ which was intended to be acquired for original public
purpose, namely, the construction of Sewage Purification
Plant, though was shifted to Block ‘A’, the land was
earmarked for residential, commercial-cum-residential
purposes or partly for residential purpose etc. It is the
case of the appellant that the Corporation intends to use
the land acquired for construction of the staff quarters for
its employees. It is true that there was no specific plan
as such placed on the record, but so long as the land is
used by the Corporation for any designated public
purpose, namely, residential-cum-commercial purpose for
its employees, the later public purpose remains to be
valid public purpose in the light of the change of the user
of the land as per the revised approved plan. It is true
that in the original scheme the residential quarters for the
staff working in the Sewage Purification Plant were
intended to be constructed and the same purpose is
sought to be served by the acquisition of the land by
using the land in Block “A”. Nonetheless the acquired
land could be used by the Corporation for residential-
cum-commercial purpose for its employees other than
those working in the Sewage Purification Plant. It would
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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 public purpose
continues to subsist. The award and possession taken
do not become invalid or ultra vires the power of the Land
Acquisition Officer. On taking possession, it became
vested in BMC free from all encumbrances including
tenancy rights alleged to be held by the respondents.
Possession and title validly vesting in the State, becomes
absolute under Section 10 of the Act and thereafter the
proceedings under the Act do not become illegal and the
land cannot be revested in the owner. Only before taking
possession, the Government can withdraw from inquiry
under Sections 45(1) of the Act or the High Court under
Article 226 of the Constitution may quash it on the legal
and valid grounds. If the award under Section 11-A was
not made within two years from the date of the
publication of the declaration under Section 6, as
enjoined under Section 11-A of the Land Acquisition Act,
whether the notification under Section 4(1) would lapse.
This Court in Satendra Prasad Jain v. State of U.P. had
held that after the land stood vested in the State, even if
the authorities failed to comply with the statutory
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requirement, it does not have the effect on the vesting of
land in the State. Thereby the notification under Section
4(1) and the declaration under Section 6 do not stand
lapsed. The same view was reiterated by another Bench
in Awadh Bihari Yadav v. State of Bihar. The High Court,
therefore, was not right in exercise of power under Article
226 of the Constitution in granting declarations as
mentioned in the beginning or in making order of
injunction against the appellants pending writ petitions. It
is an equally settled law that a tenant cannot challenge
the notification under Section 4 and declaration under
Section 6 of the Act when the landlord himself had
accepted the award and received compensation.”
7] In the result, there is no merit in this petition which is
hereby dismissed. Rule stands discharged with no order as to costs.
JUDGE. JUDGE.
J.
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