1
"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2566 OF 2009
(Arising out of SLP (C) 12077 of 2007)
Pranita Powerloom Coop. Soc. Ltd. .... Appellant
Versus
State of Maharashtra & Ors. .... Respondents
WITH
CIVIL APPEAL NO.2570 OF 2009
(Arising out of SLP (C) 11250 of 2008)
Parisa Appanna Mangare & Ors. .... Appellants
Versus
State of Maharashtra & Ors. .... Respondents
WITH
CIVIL APPEAL NOs. 2572-2573 OF 2009
(Arising out of SLP (C) 11345-11346 of 2008)
Kamakshi Tex Fab Pvt. Ltd. & Ors. .... Appellants
Versus
State of Maharashtra & Ors. .... Respondents
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WITH
CIVIL APPEAL NO. 2568 OF 2009
(Arising out of SLP (C) 11357 of 2008)
Chhatrapati Shivaji Pow. Coop.
Soc. & Ors. .... Appellants
Versus
State of Maharashtra & Ors. .... Respondents
WITH
CIVIL APPEAL Nos.2574-2575 OF 2009
(Arising out of SLP (C) 23332-23333 of 2008)
Srinivas Ganpathrao Satpute & Ors. .... Appellants
Versus
State of Maharashtra & Ors. .... Respondents
WITH
CIVIL APPEAL NO. 2567 OF 2009
(Arising out of SLP (C) 23335 of 2008)
Kamakshi Tex-Fab Pvt. Ltd. & Ors. .... Appellants
Versus
State of Maharashtra & Ors. .... Respondents
3
WITH
CIVIL APPEAL NO.2569 OF 2009
(Arising out of SLP (C) 20656 of 2008)
Bapu Babu Sangale & Ors. .... Appellants
Versus
State of Maharashtra & Ors. .... Respondents
JUDGMENT
V.S. SIRPURKAR, J.
1. This judgment shall dispose of SLP (C) No. 12077/07, as also
SLP(C) No. 11250/08, SLP(C) No.11345-11346/08, SLP(C)
No.11357/08, SLP(C) No. 23332-23333/08, SLP(C) No.23335/08 and
SLP(C) No.20656/08.
2. Leave granted in all the Special Leave Petitions.
3. One Ichalkaranji Industrial Cooperative Estate filed a Writ Petition
No. 8967/05 before Bombay High Court, impleading the State of
Maharashtra, Collector for District of Kolhapur, Commissioner for
Directorate of Industries and Land Acquisition Officer, Kolhapur initially.
One Pride India Cooperative Textile Park Ltd. came to be joined as
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respondent No. 5 later on. In this petition, validity of the communication-
cum-order passed by the State of Maharashtra and the Collector dated
30.08.05 was challenged. By that order the acquisition started in favour
of the Ichalkaranji Cooperative Society Ltd. (hereinafter called `Society’
for short) was cancelled. It was contended, inter alia, that the Society
was a registered cooperative society under the Maharashtra
Cooperative Societies Act and was established for the purposes of
erecting industrial estates for the benefit of its members and that it was
active right from 1974 and was also instrumental in setting up Industrial
Estate for the areas Kolhapur and Ichalkaranji.
4. It was claimed that in the year 1974 the Kolhapur District Planning
Committee had assured the Society that an area of 600 acres would be
made available to it for the purpose of erecting such industrial estate.
Initially in the year 1980, the area of 100 acres of land was sought to be
acquired for the benefit of the said Society and that acquisition was
completed in the year 1988 by the Land Acquisition Officer-respondent
No.5. The Society had also paid Rs.37.50 lakhs towards the acquisition
charges. It was further contended that after the land was handed over
to the Society, a layout of the land was prepared and some 457 plots
were made therein. The Society made infrastructure for establishment
of the industrial estate including roads, water supply, sewerage,
electricity connection, petrol pump, recreation grounds, roads for
transportation etc.
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5. The Society further contended in its petition that several persons,
who were in the waiting list of the State Cooperative Society as their
members for allotment, made further cry for the allotment of plots to
them so that they can set up industrial units in that area. Considering
the need for relocation for the industrial estate, a proposal came to be
made by the Society to the respondents State authorities that additional
land of 134 acres at village Tardal be made available to them so that the
infrastructure which was already erected by the Society in the industrial
estate at Shahpur could be used and utilised for setting up the industrial
estate at Tardal which was barely beyond a road and was in the vicinity
of the earlier industrial estate set up by the Society. This proposal was
made on 30.08.02. According to the further contentions, this proposal
was recommended by respondent No.1 through the Deputy Registrar
(Industries) by communication dated 11.09.02.
6. It was further contended by the Society that on 19.03.02, it was
informed by the Land Acquisition Officer that it must file the said
proposal for acquisition in the prescribed form (g) along with the
necessary revenue records like 7/12 extract and other relevant
information. Accordingly, some further enquiries were made from the
Society with respect to the other land. It was further contended in the
petition that the Society, immediately on 23.09.02, had informed the
State Government about the queries made to them and, thereafter, the
Joint Registrar by his communication dated 25.09.02 to the
Development Commissioner, who recommended the acquisition by his
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letter dated 17.12.2002 of 134 acres to Collector, Kolhapur, had
recommended the acquisition in favour of the Society. It was further
contended that by the communication-cum-order dated 26.02.04 the
Collector of Kolhapur had held that the land should be acquired on
behalf of the Society. A further proposal was made that since the
acquisition was for the benefit of the authority other than the
Government, there should be a nominal compensation paid by the
Government of Rs. 100/- so that the acquisition proceedings could
begin. The Society further contended that it requested the State
authorities to accord their consent to pay Rs. 100/- so that the
acquisition proceedings may begin. The Town Planning Department by
its letter dated 02.03.04 sought for some information from the Society.
Thereafter, there was a letter dated 29.02.04 informing the Society that
the State has not consented to pay the said sum of Rs. 100/- and,
therefore, the acquisition would be termed to be an acquisition for the
company.
7. The Society further pleaded that it was informed by the State
Government by its letter dated 07.10.04 and 13.05.05 that the sum of
Rs. 100/- was likely to be sanctioned soon. Thereafter further
information was sought by the Town Planning Department by letter
dated 04.05.05 which was given by the Society by letter dated 24.05.05.
It was pleaded that at this stage the Cooperative Society apprehended
that certain portion of the land might be given in favour of the third
parties and especially in favour of one Pride India Cooperative Textile
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Park Ltd. which was joined as respondent No.5 and, therefore, the
Society by its communication as well as by the advertisement in the
local newspapers informed the State authorities and public at large that
no action should be taken which was detrimental to the interests of
Society. In pursuance of that, the Commissioner for Directorate of
Industries by letter dated 06.10.05 directed the Collector, Kolhapur that
the land should be kept reserved in the industrial zone and no industrial
activity should be sanctioned in the said area and the land in favour of
the Society should be acquired at the earliest. In the wake of all this, the
Collector by his letter dated 30.08.05 informed the Society that it had not
complied with the several requirements of law and, hence, acquisition
proposal of the Cooperative Society was being cancelled. In short, the
Society challenged this letter dated 30.08.05 on various grounds
including the ground that its proposal in its favour of land acquisition had
reached almost finality and the State Government could not, in the wake
of all what had happened, cancel the proposal. It sought for the
quashing of that letter. In its prayer it sought for a writ of Mandamus
directing the Collector Kolhapur to cancel the impugned communication-
cum-order dated 30.08.05. Some interim reliefs were also prayed for.
8. This petition was opposed by the Land Acquisition Officer who
filed a detailed affidavit mainly stating that the relief claimed by the said
Cooperative Society could not have been granted in its favour. It was
pointed out that the land was not reserved only for the petitioner in the
Regional Plan and could be developed by each of the owners in
accordance with the reservation. It was also pointed out that the
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information sought from the respondent No. 4 herein in accordance with
Land Acquisition Act and Rules had not been supplied by it for about a
year and it had not complied with the requirements and hence, the
cancellation order had been passed. It was also pointed out that
sufficient industrial zone had been earmarked in the Regional Plan of
Kolhapur Ichalkaranji.
9. The other Society, namely, the Pride Powerloom Cooperative
Society Ltd. also appeared in the matter and pointed out by affidavit that
it had interest in about 46 acres of land, which was acquired by private
negotiation and that the Society could not claim exclusively for the
acquisition.
10. This petition was, however, compromised on the basis of the
consent terms presented to the Court. In these consent terms dated
01.12.06 only two Societies were parties to that petition – Ichalkaranji
Industrial Cooperative Estate and the 5th respondent, namely, one Pride
India Cooperative Textile Park Ltd. But before that an order dated
16.11.06 came to be passed by the High Court suggesting that there
should be negotiations between the Society and Pride India Cooperative
Textile Park Ltd. That order reads as thus:
“Having heard Mr. Jahangirdar the learned senior
counsel with Mr. Dani for the petitioner-Society-
Society and Mr. Rajure, learned counsel for the
respondent No.5 Society, we are of the considered
opinion that at the first instance the petitioner-Society
and the respondent No.5 Society must arrive at a
compromise in sharing the proposed land for
acquisition and thereafter it would be appropriate for
them to approach the Collector with this compromise
9reduced in writing so as to enable him to issue a
notification under Section 4 of the Land Acquisition
Act, 1894. Undoubtedly, both the petitioner-Society
as well as the respondent No.5 will have to deposit
the compensation amount in the Collectorate before
the declaration under Section 6 of the said Act is
published.
Mr. Rajure seeks time to take instructions. Time
granted, S.O. for two weeks.
Status quo in respect of the subject land be
maintained until the next date.”
11. Ultimately the consent terms were given on 01.12.06 which were
recorded by the High Court incorporating those consent terms in its
order. On the same day the petition was disposed of directing the
Collector, Kolhapur to proceed with the acquisition proceedings as soon
as the legal compliance was fulfilled by the Society. For better
understanding, we would quote the whole order of the High Court. It
reads as thus:
“1. As per the order passed by us on 16th
November, 2006, the petitioner-Society and
respondent No.5 negotiated for an amicable
settlement and these negotiations have
resulted in the parties agreement in terms of
the consent terms which have been placed
before us. The consent terms are taken on
record and marked as “X” for identification. A
copy of the same has already been supplied to
the learned AGP.
2. The Affidavit-in-reply filed by Shri S.D.
Chavan, the Special Land Acquisition Officer
(XI), Kolhapur indicated that the claim between
the petitioner-Society Society and respondent
No.5 Society, over the same land was coming
in the way of initiating acquisition proceedings.
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Undoubtedly, under the scheme of the Land
Acquisition Act, 1894 the Cooperative
Societies can approach the State Government
for acquiring land on submitting a scheme for
the proposed development. The petitioner-
Society No.5 will, therefore, now approach the
Collector, Kolhapur and submit a scheme on
the portion of the land identified in the consent
terms. We have also noted that the
respondent No.5 is satisfied with the land, it
has already acquired by private negotiations
and the remaining land from the subject
reservation is left for the petitioner-Society
Society alone. It is, therefore, necessary for
the petitioner-Society Society to comply with
statutory requirements including the deposit of
compensation amount.
3. We direct the collector, Kolhapur to proceed
with the acquisition proceedings as soon as
legal compliance are fulfilled by the petitioner-
Society.
4. Mr. Jahangirdar, learned senior counsel, on
instructions, states that the amount of Rs.
50,00,000/- (Rupees Fifty Lakhs) will be
deposited by the petitioner-Society Society
within a period of two months from today with
the Collectorate, Kolhapur, so that the
Notification under Section 4(1) of the Land
Acquisition Act, 1894 is issued and the
balance amount will be deposited before the
declaration under Section 6 of the said Act is
issued, so as to make a total of 90% of the
compensation amount that may be worked out
by the Land Acquisition Officer.
5. The Notification under Section 4(1) of the said
Act to be issued before 19th February, 2007,
subject of course, to the compliance of the
statutory requirements by the petitioner-
Society.
6. The requirement of Government contribution of
whatever amount will not come in the way of
initiating the acquisition proceedings.”
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12. The basic features to be noted in this consent order are:-
1. That the State of Maharashtra which was an
opposite party had never given the consent
though it was the most affected party and the
writ petition was sought against it.
2. That the feasibility of the land acquisition and
the right of the petitioner and respondent No.2
for such land acquisition or the nature of rights
of the Society and respondent No.5, were
never examined and it was almost taken for
granted that the whole land was liable to be
acquired for the private persons like the
Society and the 5th respondent therein.
3. That though apparently this was an acquisition
of land for companies covered by Part VII of
the Act, the Court proceeded to pass a
direction in paragraph 6 that the requirement
of the Government contribution would not
come in the way of initiating the acquisition
proceedings. In fact till that time the
Government had not agreed to contribute
anything so as to take out the acquisition from
Part VII and show it to be an acquisition by the
Government.
4. The consent order was without any reasons.
13. It seems that on 30.12.06, the Collector, Kolhapur called upon the
4th respondent herein i.e. the Ichalkaranji Industrial Cooperative Estate
to deposit an amount of Rs. 50 lakhs and to submit a fresh proposal for
acquisition and also to deposit 2/3rd amount of the cost of acquisition
before Section 4 Notification was issued in terms of the Government
resolution dated 14.06.01.
14. The Special Land Acquisition Officer, respondent No.3 herein,
issued a Notification dated 12.02.07 under Section 4 in respect of the
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lands which the present appellant claims to be owned by it, namely,
Kamakshi Tex-Fab Pvt. Ltd. This Notification dated 12.02.07 which was
passed in terms of judgment and order dated 01.12.06 quoted above,
was challenged by way of a Wit Petition No.3296/07 wherein review of
the order dated 01.12.2006 was sought for by as many as 11
petitioners, including the present petitioner.
15. During the pendency of this writ petition, respondent No. 1, State
of Maharashtra declined the Government contribution in support of the
proposal of the land acquisition by its communication dated 21.06.2007.
While the matter was pending, certain other parties filed Special Leave
Petition before this Court being SLP (C) CC No.5574/07 (converted to
SLP (C) No.12077/2007) wherein this Court had issued notice on
13.07.2007. Pride India Cooperative Textile Park Ltd., respondent No.5
herein, filed a reply affidavit and the petitioner also filed a further
affidavit in Writ Petition No. 3296/07 pending before Bombay High Court
wherein it was pointed that State of Maharashtra had declined the
Government contribution. The Special Land Acquisition Officer,
respondent No.3 herein also filed its reply by way of affidavit before the
High Court and it was pointed out that the Notification was issued only
to obey the order of the High Court in Writ Petition No. 8967/05 which
was an order passed on consent.
16. The other petitioners also approached the High Court by filing
Writ Petition No.1954/2008 seeking therein review of order dated
01.12.06 and also praying for quashing of the Notification dated
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12.02.07. The High Court thereupon by its order dated 04.04.2008
dismissed both the writ petitions. All other petitioners who were the co-
petitioners before the High Court in Writ Petition No.3296/07 as also in
Writ Petition No.1954/07, are party respondents herein.
17. In the impugned judgment passed in Writ Petition No. 3296/07 the
High Court has clarified that the Writ Petition No. 8967/05 was decided
on the basis of the settlement arrived at between Ichalkaranji Society
and Pride India Cooperative Textile Park Ltd. The High Court further
took note that the petitioners in Writ Petition No. 3296/07 were
Cooperative Societies, a private limited company, a proprietary firm as
well as a Hindu Undivided family and individual. The High Court also
noted the grievance that it was a land under the ownership of the
petitioner which was the concerned land and that the same was directed
to be acquired by the Court without even hearing them. The High Court
proceeded to find that all the petitioners whose lands were concerned
had filed objection certificates under Section 5A of the Land Acquisition
Act. The High Court, therefore, came to the conclusion that since the
mandatory procedure in Section 5A was to be followed in the Land
Acquisition case, there would be no prejudice caused to the petitioner
because of the land acquisition. The petitioners had also raised an
objection before the High Court that there was no contribution made for
the public funds by the State Government and, therefore, it could not be
said that the acquisition was for the public purpose, as defined in
Section 3(f) of the Act. For this purpose, the petitioners therein have
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relied on a decision of this Court in Pratibha Nema & Ors. V. State of
M.P. & Ors. [(2003) 10 SCC 626]. The High Court, on this issue,
extensively quoted from the judgment of this Court in R.L. Arora v.
State of U.P. [AIR 1962 SC 764] but made no comment thereon. It
merely recorded that there was no case made out for recalling the order
dated 01.12.06. It disposed of the writ petition with three directions:-
(1) that the order dated 01.12.06 which was called in question
in the writ petition did not give a go bye to an enquiry under
Section 5A and that the said enquiry must be completed
before issuing a declaration under Section 6.
(2) that the contribution in favour of respondent No.4 from the
State Government/public funds or from any local authority
must be received by the Collector before the declaration
under Section 6 is due to be issued as per the extended
period of one year, failing which the acquisition will have to
be as per the procedure laid down in Part VII of the Act.
(3) that the interim order which it had passed on 15.06.07
would stand vacated forthwith and the one year period for
issuing the declaration under Section 6 shall stand
extended taking into consideration that the stay order
passed on 15.06.07 and was vacated on the day when the
said judgment was passed.
18. The High Court, therefore, disposed of the writ petition confirming
the judgment, dated 01-12-06 dismissing Writ Petition No. 3296/07.
This was severely criticised by the learned counsel appearing on behalf
of the appellants herein. The main thrust of the argument of Shri U.U.
Lalit, learned Senior Counsel and the other learned counsel who
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appeared with him, was that the initial judgment dated 01-12-06 had
proceeded on the incorrect premise as if the whole land was exclusively
reserved for respondent No. 4 Ichalkaranji Society, which was not the
fact. Learned counsel pointed out that the State authorities had
declined to proceed with the acquisition and in the original Writ Petition
the respondent No.4-Ichalkaranji Society had failed to show any right in
its favour for initiating the process of land acquisition. Learned counsel
pointed out that there was nothing to suggest that this land was
reserved in favour of the 4th respondent and that the only factual
situation was that the user of this land was specified as an industrial
zone as per the plan under MRTP Act. According to the learned
counsel this did not give any right to the 4th respondent to approach the
Court and to monopolise by insisting on the land acquisition in its favour
alone.
19. Learned counsel further pointed out that the impugned order
dated 30.08.05 passed by the Collector, Kolhapur clearly showed that
there were serious infirmities in the proposal given by the 4th
respondent and, therefore, the proposal was rightly rejected. Learned
counsel then further urged that even if the order dated 30.08.05 could
be presumed to be incorrect, still the 4th respondent could not have
rushed with the writ petition without there being any specific right in its
favour.
20. Learned counsel urged that the High Court, by passing the order
dated 01.12.06, presumed as if this was a private estate meant for the
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4th respondent and the 5th respondent herein i.e. Pride India Cooperative
Textile Park Ltd. It was further pointed out that the correctness or
otherwise of the order dated 30.08.05 was never gone into by the High
Court and it was as if there were only two players in the field – 4th
respondent and the 5th respondent the private persons. The High Court
asked the respondent Nos. 4 and 5 to compromise the matter which was
a totally incorrect practice. The High Court was, in the first place,
required to decide about the right of the 4th respondent and further to
take into consideration the objections raised by the State Government
and test the correctness of the order dated 30.8.2005.
21. Learned counsel pointed out that the writ petition was opposed by
a specific reply affidavit by the State Government which was not even
referred to by the High Court and strangely enough the High Court
chose to dispose of the Writ Petition merely on the compromise
between respondent Nos. 4 and 5 presuming there existed a right
exclusively in favour of both the respondents for the land acquisition.
The learned counsel further suggested that this was a glaring error
which could have been corrected in the review in Writ Petition No.
3296/07. It was pointed out that even while disposing of that petition,
the High Court did not bother to correct this error which was apparent on
the face of the record. Learned counsel further pointed out that the
interests of the petitioner-appellants herein who were the owners of the
land were adversely affected by compromise between the two private
parties i.e. the 4th respondent and the 5th respondent. It was also
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pointed out that there are some factual mis-statements in the order
dated 01.12.06 about the affidavit of Shri S.D. Chavan opposing the writ
petition to the effect that the conflicting claims of respondent Nos. 4 and
5 were coming in the way of initiating acquisition proceedings and hence
in view of the compromise between the two private parties, there was no
impediment in acquiring the lands, as if the said land was reserved for
respondent No.4 only. The learned counsel took pains to point out that
there was no whisper in the affidavit of Shri Chavan about the conflicting
claims. It was further argued that the only reason why the State of
Maharashtra proceeded with the land acquisition proceedings was the
direction incorrectly given by the High Court. Lastly, it was argued that
though the State of Maharashtra had declined the Government
contribution for the proposal of the 4th respondent, yet the 4th respondent
misled the authorities by pointing out that the writ petition filed by the
present appellant-petitioners had been dismissed and threat of
contempt was given to call for the release of Government contribution.
The said Government contribution was stayed only on the petitioners
pointing out to the Government about the pendency of the Special
Leave Petition before this Court. It was also contended that the
acquisition in this case can never be covered by Part II of the Act and
had to be proceeded ahead as an acquisition for the company, if at all it
could so proceed.
22. As against this Shri Jaideep Gupta, learned senior counsel
appearing on behalf of the respondents and more particularly the 4th
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respondent supported the orders of the High Court. The mainstay of the
arguments of Shri Gupta is that the 4th respondent had set up an
industrial estate as far back as in the year 1960. In the year 1974 there
was a Government decision to establish an industrial estate in the
villages of Kabnoor, Tardal and Shahpur and Government itself had
recommended that up to 600 acres of land would be made available to
the estate over a period of time. Out of those 600 acres, 62 acres of
land was made available in the year 1978 and further 68 acres were
acquired by the State in the year 1986. In the year 2002 the society
sought for another 134 acres at Tardal which was adjacent to the
industrial estate. Shri Gupta argued that the total membership of the
society was 4200 and it was to only about 1040 members that industrial
plots could be made available and that about 3160 members were in the
waiting list of the Society and as such it cannot be said that there was
any irregularity in the land acquisition proceedings. Shri Gupta also
relied on Section 125 of the Maharashtra Regional and Town Planning
Act, 1966 which provides for compulsory acquisition of land needed for
the purposes of regional plans, development plans or town planning
schemes. It was tried to point out that there is a regional plan wherein it
is specifically mentioned that the industrial zone earmarked within
Ichalkaranji and Jaisingh Pur complexes could be acquired by the
cooperative industrial estate existing there, if not acquired by the
Maharashtra Industrial Estate at that time. It was pointed out that the
Ichalkaranji Society was the only existing society at that time. It was
then submitted by Shri Gupta that the Pride India Cooperative Textile
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Park Ltd. was also another relevant player in the field who intended to
establish a textile park in 46 acres of the land. He further pointed out
that the proposals of the land acquisition were rejected only because the
contribution by the State Government was not forthcoming which,
according to the learned Senior counsel was a fault not on the part of
the Society or Pride India Cooperative Textile Park but on the part of the
State Government.
23. According to the learned counsel, the earlier proposals were
rejected on the ground that the respondent Society did not answer the
queries required for such acquisition. Learned Senior counsel further
pointed out that those queries were irrelevant inasmuch as the
acquisition was for Part II and not Part VII. Learned senior counsel very
strenuously pointed out that since the proposal was rejected on the
incorrect grounds, the Society had to file the writ petition before the High
Court. According to the learned Senior counsel, the High Court had
taken a practical and pragmatic view of the matter and encouraged the
Society to compromise its disputes and differences with Pride India
Cooperative Textile Park, as it appeared to the High Court that the real
difficulty coming in the land acquisition proposal by the Society was the
proposal of Pride India Cooperative Textile Park which was also put
forward before the Collector. It was on this ground that the High Court
correctly ordered the Collector to issue a Notification under Section 4.
Learned Senior counsel also pointed out that it was only the State
Government which could have been aggrieved by such order of the High
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Court which it chose not to challenge and it allowed the order dated
01.12.06 to become final. Therefore, the order was binding in so far as
the State Government was concerned. Learned Senior counsel also
pointed out that the State Government had ultimately agreed to direct
the sum of Rs. 100/- as its contribution and that it had fully stood behind
the Societies-Ichalkaranji and Pride India Cooperative Textile Park.
24. Learned Senior counsel tried to urge that the decision to issue
Section 4 Notification was not because of the order of the High Court,
as, if the State Government did not issue such a Notification it could
have appealed against the order of the High Court directing the
issuance of such Notification. Learned Senior counsel lastly contended
that the petitioners could not have any grievance as all their interests
could be covered in the enquiry under Section 5A wherein they could
have fully taken part and be convinced about their position. The State
Government’s counsel has also very haltingly supported the
respondents practically on the only ground that the interest of the
petitioner could be taken care of under Section 5 A of the Act. It is on
these rival claims that we have to consider the matter.
25. It cannot indeed be disputed that the basic order is dated
01.12.06 which undoubtedly was disposed of on the compromise which
also appears to have been brought about by the High Court itself. We
have noted the basic features of this compromise in paragraph 12 of our
judgment. It is extremely strange that the High Court presumed that
there were only two players in the field, namely, the Ichalkaranji Society
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and the Pride India Cooperative Textile Park. The High Court seem to
have almost presumed that these two Societies alone mattered in the
whole affair and were the only two Societies which were entitled to the
land to be acquired by the State Government for establishment of the
industrial estate. There can be no dispute that Ichalkaranji Society was
established for the purposes of developing industrial estates and that it
had done so in the past. There can also be no dispute that it had a long
waiting list of about a thousand persons wanting the plots in the
industrial estate for establishing industries. The question is whether it
had that exclusive right. There is nothing at least brought either to the
notice of the High Court or before this Court to suggest that there is any
exclusivity in favour of Ichalkaranji Society. Indeed, in the field there
were so many other Societies which were also of the same nature. At
least three of them were industrial societies they being Chhatrapati
Shivaji Powerloom Cooperative Society, Mahalaxmi Sahakari Audyogik
Vasahat Maryadit . and Jagjivan Ram Magal Vargiya Charmakar
Audyogik Sahakari Sanstha. Their status was also identical as they
were registered as industrial cooperative societies as contemplated by
Maharashtra Cooperative Societies Act. It is, therefore, clear that the
High Court proceeded on the presumption that the only two relevant
players in the field were respondent Nos. 4 and 5 herein i.e. Ichalkaranji
society and Pride India Cooperative Textile Park and went on to
presume that they alone had the exclusive rights of getting the lands
from the Government by way of land acquisition. This, in our opinion, is
a wrong presumption.
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26. In the reply affidavit which has been sworn by Shri S.D. Chavan,
Special Land Acquisition Officer, Kolhapur, it was specifically urged that
specific queries were put to the Ichalkaranji Society vide letter dated
02.03.04 and letter dated 29.09.04 and the Manger of the Ichalkaranji
Society had also attended office of the Special Land Acquisition Officer
twice in relation to those queries. Those queries were not specifically
met by Ichalkaranji Society. It was further pointed out in the affidavit
that the land in question was earmarked in the industrial zone in the
zone sanctioned Regional plan of Kolhapur-Ichalkaranji region.
However, the said land had not been reserved only for the Ichalkaranji
Society in the said regional plan and, therefore, the Ichalkaranji Society
could not exclusively claim the same. In the said affidavit it was again
denied that the proposal made by the Ichalkaranji Society was in terms
of the Land Acquisition Act and in fact the Ichalkaranji Society was
merely relying upon its correspondences with the Industries Department.
It was further contended that Ichalkaranji Society was directed to fulfil
various queries suggested by State of Maharashtra vide its letter dated
02.03.04. One of the queries was the opinion about the sanction of the
Industrial Department of State of Maharashtra and also for the fulfilment
of requirement under Section 37 (f) (vii) along with the requirement of
the second proviso of Section 6 (1) of the Land Acquisition, 1894 Act i.e.
about public purpose. It was pointed out further that the Cooperative
Society was covered under the provisions of Section 3 (e) of the Land
Acquisition Act and was a company for the purpose of Land Acquisition
Act, 1894. It was further pointed out in these queries that unless a
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nominal contribution by the State Government was made, the said
acquisition could not be set up for the public purpose. It was also
pointed out further in the said affidavit that though the Director of
Industries had asked to reserve the remaining land for the petitioner, it
had nothing to do with the Collector since the land was earmarked as an
industrial zone in the sanctioned regional plan of Kolhapur-Ichalkaranji
region and there was no reservation of industrial land for the petitioner in
the regional plan after following the necessary procedure under Section
20 of the Maharashtra Regional and Town Planning Act, 1966. It was
also pointed out that the information required under Rule 4(3) of the
Land Acquisition (Company Rules), 1963 as also the information
required under Section 39 of the Land Acquisition Act was not supplied
by the Ichalkaranji Society for about one year and that it was also
expressed in the affidavit that the petitioner gave the impression that it
was not ready to comply with the information under law and, therefore,
the Collector in his order dated 30.08.05 cancelled the land acquisition
proposal.
27. It is also pointed out in the affidavit that all the concerned lands
were private lands and could also be developed by their respective
owners for industrial purposes. The claim of the petitioners-Ichalkaranji
Society that it was a land reserved for them alone, was specifically
refuted. It is pointed out that in order to provide such a reservation in
favour of Ichalkaranji Society, a Notification in the sanctioned regional
plan should have been made after following the legal procedure laid
24
down under Section 20 of the Maharashtra Regional Town Planning Act.
Thus, it was clear that the High Court was bound to consider these
grounds raised against the claim in the writ petition. The High Court,
however, does not seem to have considered any of these questions.
28. It is interesting to see how the matter proceeded. On 16.11.06,
the High Court passed the order that after hearing the counsel for the
petitioner-Ichalkaranji Society and counsel for respondent No. 5-Pride
India Cooperative Textile Park, the High Court was of the considered
opinion that, at the first instance, the petitioner and the respondent No.
5 Society must arrive at a compromise in sharing the proposed land for
acquisition and, thereafter, it would be appropriate for them to approach
the Collector with these compromise terms reduced in writing so as to
enable him to issue a Notification under Section 4 of the Land
Acquisition Act, 1894.
29. The second order has been passed on 01.12.06 wherein the High
Court has recorded the consent terms. The High Court has mentioned
the lands covered as also the map provided wherein the lands acquired
by the 5th respondent as also the land claimed by the petitioner were
shown in different colours. In all these consent terms which we have
seen, specifically, there is not even a stray reference to the Government
or to any other private party who admittedly owned some of the lands
mentioned therein. Lastly, the order came to be passed on 01.12.06
accepting the said terms. What surprises us is the apathy on the part of
the High Court to decide the question raised by the Government in its
25
reply affidavit and to point out whether the petitioner-Society could claim
an exclusive right of the land acquisition along with 5th respondent when
there was no reservation in its name under the provisions of Maharastra
Regional and Town Planning Act. Such reservation, undoubtedly,
required the procedure to be followed by Section 20, which objection
was specifically raised in the affidavit by the State Government. It is on
that the State Government asserted that there could not be any
exclusivity in favour of the petitioner-Society so as to claim the
compulsory acquisition in its favour. Again the High Court completely
ignored the fact that this was not at least till that time an acquisition
under Chapter II of the act as the Cooperative Society was nothing but a
company and the necessary condition of the contribution by the State
Government was not till then fulfilled as the State Government had
indeed not contributed nor had it agreed to contribute so as to give a
colour that the land acquisition was for the public purpose.
30. On the other hand, it is very surprising that the High Court
directed the State Government to issue a Notification under Section 4
ignoring the fact that no contribution was made and it suggested therein
by way of sixth clause that the requirement of the government
contribution would not come in the way of initiating the acquisition
proceedings. The High Court, thus, had left all the questions undecided.
All this was pointed out to the High Court in subsequent petition wherein
the petitioners-appellants sought the review of the order dated
01.12.06. However, that order is also clearly silent on the questions
26
raised on the spacious ground that all the concerns of the parties could
be taken care of in the enquiry under Section 5A. In fact that was the
mainstay of the argument of Shri Gupta that even if the petitioners
owned the land and even if they were parties who could develop the
land for the industrial purposes, yet all that could be taken care of under
Section 5A enquiry and they could be provided for the plots by the
respondent No.4 Society after the land acquisition process was
completed. What we fail to understand is if the direction to initiate
Section 4 of the Act itself emanated in an illegal fashion whether the
concerned petitioners should be put to a rigmarole of an enquiry under
Section 5A. The answer has to be negative.
31. The basic contention of the Ichalkaranji Society that it was entitled
exclusively to the land acquisition in respect of all the lands in the area
is incorrect in law as has been shown in the affidavit on behalf the State
of Maharashtra. It is obvious that the State of Maharashtra proceeded
to issue the Notification under Section 4 merely because of the direction
of the High Court. It is quite another thing that now at this juncture the
State of Maharashtra is trying to justify the land acquisition proceedings
on the spacious ground that the petitioners-appellants’ contentions
could be considered in the Section 5A enquiry. We do not wish to go
into the question as to whether the queries raised by the State of
Maharashtra were justified or not. However, we must say that the High
Court has not even bothered to consider the order dated 30.08.05 nor
has it set it aside specifically. Following queries were made which were
27
found not to have been complied with by the petitioner-Society. They
were:
“1. For the question of land acquisition, which
efforts are made by the Society for acquiring
maximum proper place in the area?
2. Which efforts have been made by the Society
for obtaining such lands by private transactions
by giving proper compensation? As to whether
those efforts are succeeded?
3. How the area proposed for the questioned
proposal is proper for the object of acquisition?
4. Whether the entire area propose in question is
required? Or whether the part of area therein if
acquired will be sufficient?
5. Which proposal/projects the society has for
using the acquired land immediately?
6. If the area under acquisition is proper for good
agriculture, besides that land, whether any other
appropriate land is not available for proposed
acquisition?”
32. The communication thereafter mentions that the Ichalkaranji
Society had complied with the issues raised at reference No. 3 and 4
only and since the other deficiencies have not been removed the
proposal was being cancelled. Even in the earlier paragraphs the
attention of the Society was drawn towards the fact that the acquisition
could be done only after the nominal compensation of Rs. 100/-, a share
of the Government towards expenses of land acquisition. It is further
pointed out in the same paragraph that the Association, namely, the
petitioner Society would be required to submit a guarantee in triplicate
28
about the availability of funds in the present land acquisition letter and it
is only after this compliance that the land acquisition proceedings could
be initiated. It is also pointed that the Association i.e. the petitioner-
Society could be accepted only as a company and, therefore, it had to
submit a report under Rule 4 (3) of the Land Acquisition Company
Rules, 1963.
33. When we have a glance on the order of the High Court it is clear
that the High Court has not considered any of these important
objections. In this backdrop, it is pointed out by the learned counsel for
the appellant-petitioners that they are the owners of the land and each
has the capacity for developing the industrial estate as per the regional
plan and, therefore, there was no justification in supporting the
acquisition proceedings even without any compliance whatsoever by the
respondent No.4 Society or treating the respondent Nos. 4 and 5 to be
the only players in the field. It was pointed out that like respondent No.5
i.e. Pride India Cooperative Textile Park, the petitioners-appellant also
owned the land and they are all industrial units. Therefore, there was
nothing special with the respondent No.5, and if the estate was given to
respondent No. 5 i.e. Pride India Cooperative Textile Park merely
because their proposal was also pending, the similar direction should
have been given to the others whose proposal were either pending or
who were capable of making any such proposal. All that was not done
and the matters were rushed on the basis of the mere compromise
formula which too was suggested by the High Court.
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34. In these circumstances, we are of the clear opinion that merely
because Section 5A enquiry is pending and merely because the
objection can be taken by the petitioners, the respondents by
themselves will not be able to cure the illegality committed in the
issuance of Section 4 Notification.
35. We deliberately do not want to go into the merits of the matter
since we propose to remand these matters back to the High Court by
setting aside both the orders of the High Court dated 01.12.06 and the
subsequent order dated 04.04.08. The High Court will now proceed to
consider both the writ petitions, namely, Civil Writ Petition No. 8967/05
and Civil Writ Petition No. 3296/07 jointly to examine the feasibility of
the land acquisition in the light of objections raised by the State
Government in its affidavit and to be raised by the parties for which an
opportunity shall be granted to them. The appeals, thus, succeed. The
matter is remanded to the High court for fresh consideration of the two
writ petitions in the light of the observations made by us. The
respondents 4 and 5 shall pay the costs in all the appeals.
………………………………..J.
[TARUN CHATTERJEE]
………………………………..J.
[V.S. SIRPURKAR]
NEW DELHI
APRIL 15 , 2009