JUDGMENT
1. We had heard this petition on 23.1.2002,
24.1.2002 as well as on 4.2.2002. After the respondents had
filed reply, the petition was heard at length on 20.2.2002.
2. Rule. The learned Government Pleader waives
service for respondents no.1 to 3 and Shri Hon, learned
Advocate waives service for respondent no.4. The respondent
no.5 has been impleaded in his capacity as Chairman of
respondent no.4 Karkhana and there is no relief sought
against him. He is a formal party.
3. Rule taken up for final hearing forthwith.
4. The petitioners are residents of village Nivali
and Borgaon of Latur taluka and are agriculturists. They
hold agricultural lands in Gat No.47 and 48 and the
agricultural lands owned by them were sought to be acquired
by the respondents no.1 to 3 at the instance of respondent
no.4 by issuing notification dated 8.2.2001 under section
4(1) of the Land Acquisition Act, 1894 (the Act for
short). The land sought to be acquired from the petitioners
is, as under:
Petitioner Number & NameArea Gat No.
————————————————————
1.Shivaji Trimbak Jadhav 40 R. 47
2.Shahaji Trimbak Jadhav 4 H.41 R.47
3.Bharat Kashinath Jadhav 6 H.60 R.48
4.Mahadeo Maruti Ingle 1 H.21 R.48
5.Dagdubai w/o Govind Bidve 81 R.48
———————————————————–
5. The petitioners had submitted their objections
during the course of section 5A enquiry and when their
objections were rejected, they filed this petition on or
about 23rd July, 2001. During the pendency of this
petition, the respondents nos. 1 to 3 issued corrigendum to
the notification under section
4(1) of the Act and the same
was published in the Government Gazette on 20.12.2001.
Fresh enquiry under section 5A of the Act was undertaken and
the objections raised by the petitioners were again
rejected.
6. The petitioners contend that by the subject
acquisition, they would be landless, the land is being
acquired under the colourable exercise of power and with
malafide intentions, the respondent no.4 has surplus land
admeasuring about 100 acres and it does not require any
further land, the respondent no.4 has issued press
statements declaring that it has a crushing capacity of 1250
M.T. and about 100 acres of land is reserved for future
expansion. In addition, an advertisement issued by the
respondent no.4 was published in some of the local
newspapers for leasing out shops to be constructed in the
premises of the respondent no.4 factory thereby, indicating
that the land was being utilised for commercial purposes and
additional land was being sought for the same purpose. The
acquisition under challenge is not for the purpose which is
mentioned in the acquisition notice. In the original
notification under section
4(1) of the Act, the purpose for
which the land was being sought was stated to be Educational
and Cultural Schemes. The same was changed, in the amended
notification published in the gazette on 20.12.2000, to
Farmers Home, Sugar School and Cane Yard. This was done
solely because the respondents nos.1 to 3 took note of the
challenge raised in this petition that the original purpose
mentioned in the notification published on 18.1.2001 did not
fall within the ambit of public purpose as defined under
the Act and at no point of time, the schemes for which the
land was sought to be acquired, have been sanctioned by the
State Government prior to issuance of the original or
amended notification under section 4 of the Act. In support
of the allegations on the ground of colourable exercise and
malafides, the petitioners stated that the subject land is
not located adjacent to the land which was already acquired
and the land is exactly opposite the respondent no.4 factory
premises, separated by a public road. The respondent no.4
does not require any further land specially, when it has
surplus land in its possession and the existing land of
about 200 acres acquired by the respondent no.4 has
virtually enveloped some private land which is not sought to
be acquired. It is also contended that the respondents no.1
to 3 have acted in haste and committed illegalities as well
as they have not verified the Government policy of not
acquiring the land when the land-holders become landless,
only because of influence of the respondent no.5. We make
it clear that we need not consider this issue and specially,
when we have already held that the respondent no.5 is only a
formal party. The land is sought to be acquired for
respondent no.4 and we have to examine only the role of
respondent no.4 vis-a-vis the contentions raised by the
petitioners challenging the action of respondents no.1 to 3.
7. The affidavits on behalf of the respondents no.1
to 3 and 4 have been filed before us and the petition has
been opposed. At one stage, the State Government as well as
the respondent no.4 had relied upon the provisions of
section 3(cc) read with section 3(f)(iv) of the Act and
submitted that the respondent no.4 being a society owned and
controlled by the State, the land under acquisition was for
a public purpose within the meaning of section 3(f)(iv) of
the Act. However, this contention was not subsequently
pursued and rightly so.
8. The learned Special Counsel appearing for the
respondents no.1 to 3 emphasized that the subject
acquisition is for the public purpose though it is at the
instance of respondent no.4 and none of the petitioners
would become landless. He also submitted that the
acquisition is for the welfare of all the shareholders of
respondent no.4 and there is no likelihood of any prejudice
to any of the petitioners. The petitioners are entitled for
compensation under the scheme of the Act and there was no
intention to acquire petitioners land forcibly. The
allegations of colourable exercise of power and malafides
etc. have been refuted. In defence of the acquisition
proceedings, the learned Special Counsel has relied upon the
following decisions of the Apex Court:
1) Smt. Somawanti and others v. State of Punjab .
2) Raja Anand Brahma Shah v. The State of Uttar Pradesh
and others .
3) Jage Ram and others v. State of Haryana (AIR 1971 SC
1035).
4) State of Gujarat v. Sankalchand .
5) Srinivasa Coop. House Building Society Ltd. v. Madam
Gurumurthy Sastry and others .
6) Bajirao T. Kote (Dead) By Lrs. and another v. State
of Maharashtra and others .
7) H.M.T. House Building Co-operative Society v. Syed
Khader and others .
8) State of Tamil Nadu and others v. L. Krishnan and
others .
9) Scindia Employees Union v. State of Maharashtra and
others .
10) Venkataswamappa v. Special Deputy Commissioner .
11) State Govt. Houseless Harijan Employees Association v.
State of Karnataka and others (AIR 2001 SC 437).
9. The respondent no.4, on the other hand, stated
that the subject land was sought to be acquired for a
co-operative society registered under the Maharashtra
Cooperative Societies Act, 1960 which is a company within
the meaning of section 3(e)(iii) of the Act and the
acquisition at its instance was for a public purpose within
the meaning of section 3(f)(vi) of the Act. The respondent
no.4 passed a resolution on 24.10.2000 for acquisition of
the subject land admeasuring 13 Hectares and 43 Ares and the
same was submitted to the Collector, Latur who in turn, has
taken further steps under the Act. The Karkhana requires
the subject land for its purpose and in normal course, the
acquisition is sought to be made by following due process of
law. It has stoutly denied the allegations of malafides and
colourable exercise of power. The proposals for
construction of Farmers Home, Sugar School and Cane Yard
are going to benefit the cultivators, members of respondent
no.4 as well as the harvesting labour and, therefore, the
land sought to be acquired is for public purpose. It is
also stated that the acquisition proceedings in respect of
land from Gat Nos.655, 650, 22 and 25 admeasuring about 5
Hectares is in progress and the same is also at the instance
of the Karkhana. Once, the Co-operative society has passed
a resolution which has been acted upon by the competent
authorities, the requirements of clause (vi) of section 3(f)
of the Act are satisfied and, therefore, the challenge
raised to the subject acquisition is without any substance
and the same is required to be rejected by this Court. In
support of the defence, the learned Counsel for the
respondent no.4 has relied upon the following decisions of
the Supreme Court:
1) Land Acquisition Collector and another v. Durga Pada
Mukherjee and others .
2) Bajirao T. Kote (Dead) By Lrs. and another v. State
of Maharashtra and others .
In addition, reliance has been placed on the following
two judgments of this Court:
1) Chiman Narayan Taras and others v. State of Maharashtra
and others .
2) Murlidhar Madhusudan Roplekar v. The State of
Maharashtra and ors. (2000(3) ALL MR 358).
10. We are required to decide whether the subject
acquisition falls within the provisions of section 3(f)(vi)
of the Act i.e. public purpose or whether the acquisition
is for a company within the meaning of section 3(e) of the
Act thereby requiring the compliance of Part VII. The
learned Government Pleader produced before us, the original
record and, therefore, some of the relevant facts are noted,
as under:-
The respondent no.4 has acquired, by private
negotiations, about 200 acres of agricultural land and it
came to be registered under the Maharashtra Cooperative
Societies Act, 1960 on 21st March, 2000. It has crushing
capacity of 1250 M.T. Its resolution dated 24.10.2000 was
received by the Collector and consequently, an agreement
came to be signed between the Collector and the respondent
no.4 on the same day. This agreement is for the purpose of
complying the requirements of Part VII of the Act as is
clear from its terms. One of the conditions was for the
Karkhana to deposit an amount of Rs.16,78000/- within one
week and also to comply with other requirements of Part VII
of the Act. The purpose for acquisition as was stated in
the resolution passed by the Karkhana was residential
arrangement for the harvesting labour, parking lot for
transportation vehicles, sugar school and fuel station.
However, in the agreement signed between the parties on the
same day, the purpose mentioned was administrative building,
farmers home, sugar school and cane yard.
On 20.12.2000, the Collector, Latur passed an order
under section 3 read with section 51 of the Act and directed
the Sub Divisional Officer to act as Land Acquisition
Officer and take appropriate steps for acquisition of the
land. On the very next day, the Collector passed another
order directing the Sub Divisional Officer to issue
notification under section
4 of the Act and inform the
Tahsildar, accordingly. In addition, the Assistant
Registrar, Latur was informed against registering any
agreement of sale or transfer of the subject land. On
26.12.2000, the Land Acquisition Officer forwarded
notification under section
4(1) of the Act for publication
in the Government gazette and it came to be published on
18.1.2001. The purpose for acquisition mentioned in the
said notification was “educational and cultural schemes.”
Notifications under section
4(1) of the Act were
subsequently, served on the petitioners. They submitted
their replies through an Advocate and opposed the
acquisition. On the purpose of Sugar School, it was very
specifically stated by the petitioners that the villages
Nivali and Borgaon were located at a distance of about 2 Kms
from the respondent no.4 factory and in both the villages,
there are secondary schools. In such circumstances, there
was no necessity for the proposed Sugar School. The Sub
Divisional Officer conducted an enquiry under section 5A of
the Act after hearing both the parties. The respondent no.4
was also represented by an Advocate in the said enquiry. In
the mean while, the Collector went on reminding the Land
Acquisition Officer to expedite the process. Finally, the
objections raised by the petitioners were rejected by the
Sub Divisional Officer. However, vide letter dated
27.6.2001, the Sub Divisional Officer approached the
Government Printing Press, Aurangabad for amendment to the
original notification published under section
4(1) of the
Act. The same amendment was published in the Government
Gazette on 27th September, 2001 and the purpose for
acquisition was changed to Farmers Home, Sugar School and
Cane Yard in place of Educational and Cultural Schemes.
Fresh enquiry under section 5A of the Act was conducted.
The petitioners again appeared in the said enquiry through
an Advocate. The respondent no.4 also was represented by an
Advocate and the objections raised by the petitioners came
to be rejected by the Land Acquisition Officer vide his
order dated 24.10.2001. The petitioners have brought on
record the amended notifications and it is required to be
noted at this stage that a fresh notification under section
4(1) of the Act was not issued and it was only a corrigendum
regarding the change of purpose for acquisition. The
declaration under section 6 of the Act was published in the
Government Gazette on 20.12.2001 i.e. during the pendency
of this petition.
11. On 12.9.2001, this Court had issued notice before
admission. Civil Application No.155 of 2001 was allowed in
terms of prayer clause (B) vide order dated 23.1.2002.
12In the case of Smt. Somawanti and others
(supra), which has been relied upon by the respondents no.1
to 3, the Supreme Court in its majority view inter alia,
held, as under:
“The object of the law is to empower Government
to acquire land only for a public purpose or for
a company, and, where it is for a company the
acquisition is subject to the provisions of Part
VII. The acquisition for a company contemplated
by Part VII is confined only to cases where the
Government is satisfied that the purpose of
obtaining the land is erection of dwelling houses
for workmen employed by the company or for the
provision of amenities directly connected
therewith or for the construction of some work
which is likely to prove directly useful to the
public.”
This view has been consistently followed and the learned
Counsel for the State Government is right in his contentions
that the issue of “public purpose” is a subjective
satisfaction of the State Government. Once, the Government
has arrived at a conclusion that the land was sought to be
acquired for public purpose, that decision is not a matter
of judicial review per se. We are not testing the
Governments wisdom in terming the subject acquisition for
public purpose. We are examining whether the subject
acquisition proceedings could be held to be for public
purpose on the basis of the purpose mentioned in the
notification originally issued or subsequently amended.
This Court is not estopped from testing the acquisition
proceedings qua the provisions of the Act. The petitioners
are specific in their contentions that the purpose of
acquisition is not a public purpose and the purpose of
acquisition was subsequently, changed during the pendency of
this petition, having realised that the original purpose did
not fall within the meaning of public purpose. Most of the
decisions relied upon by the learned Counsel for the
Government, relate to the Government forming opinion about
public purpose and, therefore, they are not relevant for
deciding the issues which we have framed above.
13. Section 3(e) of the Act defines the term
“company” and section 3(f) defines the term “public
purpose”. The same definitions are reproduced, as under:
“(e) the expression “Company” means –
(i) a company as defined in section 3 of the
Companies Act, 1956, other than a Government
company referred to in clause (cc);
(ii) a society registered under the Societies
Registration Act, 1860, or under any
corresponding law for the time being in force in
a State, other than a society referred to in
clause (cc);
(iii) a co-operative society within the meaning
of any law relating to co-operative societies for
the time being in force in any State, other than
a co-operative society referred to in clause
(cc).”
“(f) the expression “public purpose” includes –
(i) the provision of village-sites or the
extension, planned development or improvement of
existing village-sites;
(ii) the provision of land for town or rural
planning;
(iii) the provision of land for planned
development of land from public funds in
pursuance of any scheme or policy of Government
and subsequent disposal thereof in whole or in
part by lease, assignment or outright sale with
the object of securing further development as
planned;
(iv) the provision of land for a corporation
owned or controlled by the State;
(v) the provision of land for residential
purposes to the poor or landless or to persons
residing in areas affected by natural
calamities, or to persons displaced or affected
by reason of the implementation of any scheme
undertaken by Government, any local authority or
a corporation owned or controlled by the State;
(vi) the provision of land for carrying out any
educational, housing, health or slum clearance
scheme sponsored by Government or by any
authority established by Government for carrying
out any such scheme, or, with the prior approval
of the appropriate Government, by a local
authority, or a society registered under the
Societies Registration Act, 1860 (21 of 1860), or
under any corresponding law for the time being in
force in a State, or a co-operative society
within the meaning of any law relating to
co-operative societies for the time being in
force in any State;
(vii) the provision of land for any scheme of
development sponsored by Government or, with the
prior approval of the appropriate Government, by
a local authority;
(viii) the provisions of any premises or building
for locating a public office, but does not
include acquisition of land for Companies.”
Both these definitions have been amended by Act
68 of 1984. Section
4(1) of the Act states that whenever it
appears to the appropriate Government, the Commissioner, or
Land Acquisition Officer that land in any locality is needed
or is likely to be needed for any public purpose, or for a
Company a notification to that effect, shall be published in
the Official Gazette and in two daily newspapers circulating
in that locality of which at least one shall be in the
regional language and the Collector shall cause public
notice of the substance of such notification to be given at
convenient places in the said locality the last of the dates
of such publication and the giving of such public notice,
being hereinafter referred to as the date of the publication
of the notification. The acquisition thus, stated under
section
4(1) of the Act is of two types namely, for public
purpose and for a company. The acquisitions for companies
are covered in Part VII i.e. from Section 38A to 44B of the
Act.
14. Section 38A of the Act states that an industrial
concern, ordinarily employing not less than one hundred
workmen owned by an individual or by an association of
individuals and not being a Company, desiring to acquire
land for the erection of dwelling houses for workmen
employed by the concern or for the provisions of amenities
directly connected therewith shall, in so far as it concerns
the acquisition of such land, be deemed to be a Company for
the purpose of said Part, and references to Company in
sections 4, 5A, 6, 7 and 50 shall be interpreted as
references also to such concern.
Section 39 of the Act states that the provisions of
section 6 to 16 (both inclusive) and section 18 to 37, (both
inclusive) shall not be put in force in order to acquire
land for any Company under the said Part unless with the
previous consent of the appropriate Government, nor unless
the Company shall have executed the agreement hereinafter
mentioned i.e. under section 41.
Section 40 of the Act contemplates previous enquiry by
the appropriate Government for processing the proposal of
acquisition for a company. Section 41 states that if the
appropriate Government is satisfied after considering the
report, if any, of the Collector under section 5A,
sub-section (2), or on the report of the officer making an
inquiry under section 40 that the proposed acquisition is
for any of the purposes referred to in clause (a) or clause
(aa) or clause (b) of sub-section (1) of section 40, it
shall require the Company to enter into an agreement with
the appropriate Government providing, to the satisfaction of
the appropriate Government, for the matters stated therein
i.e. payment to the appropriate Government of the cost of
the acquisition, etc.
Section 42 of the Act states that every such
agreement shall, as soon as may be after its execution, be
published in the Official Gazette and shall thereupon so far
as regards the terms on which the public shall be entitled
to use the work have the same effect as if it had formed
part of the said Act.
Section 44A puts restriction on the Company from
transferring the acquired land whereas section 44B states
that notwithstanding anything contained in the Act, no land
shall be acquired under Part VII, except for the purpose
mentioned in clause (a) of sub-section (1) of section 40,
for a private company which is not a Government company.
15. If the impugned acquisition is for public purpose
and at the instance of respondent no.4, it must satisfy the
requirements of clause (vi) of Section 3(f) of the Act,
namely, the respondent no.4 ought to have framed a scheme
which is already sanctioned by the State Government for
educational, housing, health, or slum clearance. When we
pointedly inquired about this condition, it was stated on
behalf of the respondent no.4 that its resolution dated
24.10.2000 was forwarded to the Collector which has been
duly acted upon and that itself meets the requirements of
public purpose. In addition, our attention was invited to
the Government Resolution dated 30th October, 1996 in
support of this contention as well. This resolution states
that the Zilla Parishads shall take appropriate steps to
provide schooling facilities to the children of harvesting
labour working in or for the sugar factories, titled as
“Sugar Schools”. Whether these steps taken by the
respondent no.4 really meet the requirements of public
purpose is required to be examined on the touchstone of the
law laid down by the Supreme Court from time to time and we
will refer to the following two judgments.
In the case of Srinivasa Cooperative House
Building Society Ltd. v. Madam Gurumurthy Sastry and
others (supra), similar issue was
considered by the Apex Court. The land was sought to be
acquired for a cooperative society registered under the
Andhra Pradesh Cooperative Societies Act and the same
acquisition was objected to on the ground that it was not
for public purpose. While dealing with the respective
contentions, a two Judge Bench of the Apex Court observed:
(a) “Public purpose is not capable of precise
definition. Each case has to be considered in
the light of the purpose for which acquisition is
sought for. It is to serve the general interest
of the community as opposed to the particular
interest of the individual. Public purpose
broadly speaking would include the purpose in
which the general interest of the society as
opposed to the particular interest of the
individual is directly and vitally concerned.
Generally the executive would be the best judge
to determine whether or not the impugned purpose
is a public purpose. Yet it is not beyond the
purview of judicial scrutiny. The interest of a
section of the society may be public purpose when
it is benefited by the acquisition. The
acquisition in question must indicate that it was
towards the welfare of the people and not to
benefit a private individual or group of
individuals joined collectively. Therefore,
acquisition for anything which is not for a
public purpose cannot be done compulsorily.
(b) There is no provision in the Act to say that when
a land is required for a company, it may also be
for a public purpose. Therefore, if a company,
namely a Cooperative Society registered under the
Central or State Cooperative Societies Act,
preceding 1984 Amendment Act, had to acquire the
land it had to do so in strict compliance with
Chapter VII. If the company, (Cooperative
Society) requires land for any purpose other than
those mentioned in Section 40, then no compulsory
acquisition under the Act is possible.
(c) Even the acquisition for a company, unless
utilisation of the land so acquired is integrally
connected with public use, resort to the
compulsory acquisition under Chapter VII cannot
be had. Even when Chapter VII was invoked, the
requirements of Section 40 and Section 41 are
mandatory and shall be strictly complied with.
(d) Notwithstanding anything contained in the Act,
i.e., despite the compliance with Chapter VII, no
land should be acquired under Chapter VII except
for the purpose mentioned in clause (a) of
subsection (1) of Section 40, for a private
company which is not a Government company and
that such company shall not be entitled after the
acquisition under Chapter VII to transfer the
said land or any part thereof by sale, mortgage,
gift, lease or otherwise except with the previous
sanction of the appropriate Government.”
The Supreme Court noted that the cooperative
society for which the land was sought to be acquired had not
submitted any scheme to the State Government and such a
scheme was never approved by the State Government prior to
issuance of the notification under section
4(1) of the Act.
The Court held that to meet the requirements of public
purpose, within the meaning of section 3(f)(vi) of the Act,
such a prior approval/sanction by the State Government on
the proposed scheme as submitted by the cooperative society
was a must and failure in that regard would lead to the
conclusion that the purpose of acquisition was not a public
purpose.
We then refer to a three Judge Bench judgment of
the Apex Court in the case of H.M.T. House Building Coop.
Society v. Syed Khader and others
(supra), which has elaborately dealt with the same issue and
this decision is squarely applicable to the case at hand.
When the earlier two notifications issued under section
4(1)
were not acted upon by the State Government, the third
notification was issued and the acquisition proceedings were
set in motion. The proceedings were challenged before the
Karnataka High Court. The High Court allowed the petition.
The appeals before the Supreme Court came to be dismissed
and it would be apt to reproduce the following observations
in the said case in paragraphs 20, 21 and 23.
“20.Now the question which is to be
answered is as to whether in view of the “20.
Now the question which is to be answered is as to
whether in view of the definition of “public
purpose” introduced by the aforesaid amending Act
68 of 1984 in Section 3(f)(vi), is it open to the
appropriate Government to acquire land for
cooperative society for housing scheme without
making proper enquiry about the members of the
Society and without putting such housing
co-operative society to term in respect of nature
of construction, the area to be allotted to the
members and restrictions on transfer thereof?
21.According to us, in Section 3(f)(vi)
the expression “housing” has been used along with
educational and health schemes. As such the
housing scheme contemplated by Section 3(f)(vi)
shall be such housing scheme which shall serve
the maximum number of members of the society.
Such housing scheme should prove to be useful to
the public. That is why the Parliament while
introducing a new definition of “public purpose”,
said that any scheme submitted by any cooperative
society relating to housing, must receive prior
approval of the appropriate Government and then
only the acquisition of the land for such scheme
can be held to be for public purpose. If
requirement of Section 3(f)(vi) is not strictly
enforced, every housing cooperative society shall
approach the appropriate Government for
acquisition by applying Section 3(f)(vi) instead
of pursuing the acquisition under Part VII of the
Act which has become more rigorous and
restrictive. In this background, it has to be
held that the prior approval, required by Section
3(f)(vi), of the appropriate Government is not
just a formality; it is a condition precedent to
the exercise of the power of acquisition by the
appropriate Government for a housing scheme of a
co-operative society.
23……………… In spite of the
repeated query, the learned counsel appearing for
the appellant society could not point out or
produce any order of the State Government under
Section 3(f)(vi) of the Act granting prior
approval and prescribing conditions and
restrictions in respect of the use of the lands
which were to be acquired for a public purpose.
There is no restriction or bar on the part of the
appellant society on carving out the size of the
plots or the manner of allotment or in respect of
construction over the same. That is why the
framers of the Act have required the appropriate
Government to grant prior approval of any housing
scheme presented by any cooperative society
before the lands are acquired treating such
requirement and acquisition for public purpose.
It is incumbent on part of the appropriate
government while granting approval to examine
different aspects of the matter so that it may
serve the public interest and not the interest of
few who can as well afford to acquire such lands
by negotiation in open market. According to us,
the State Government has not granted the prior
approval in terms of Section 3(f) of the Act to
the housing scheme in question. The power under
Sections
4(1) and 6(1) of the Act has been
exercised for extraneous consideration and at the
instance of the persons, who had no role in the
decision making process – whether the acquisition
of the lands in question shall be for a public
purpose. This itself is enough to vitiate the
whole acquisition proceeding and render the same
as invalid.”
The Apex Court finally concluded that the
provisions of section 3(f)(vi) of the Act were not complied
with inasmuch as, there was no prior approval of the State
Government as required by the said section before the steps
for acquisition of the lands were taken. The appellant
society had not submitted any plans which were required to
be approved by the State Government regarding the proposed
housing scheme.
16. In the case at hand, admittedly, there is no such
scheme either for the farmers home, sugar school or cane
yard submitted to the State Government and which has been
subsequently, approved by the State Government before the
notification under section
4(1) was issued. On the other
hand, the agreement executed on 24.10.2000 specifically
deals with the proceedings under Part VII of the Act and we
fail to see any reasons as to why this agreement was not
taken note of by the Collector, Latur while issuing the
notification under section
4(1) of the Act. If this
agreement was acted upon in its true spirit, the acquisition
could have proceeded for the company and under Part VII of
the Act. This has not been done. The agreement was
obviously given a go by and the challenge raised by the
petitioners is being fought on the ground that the
acquisition was for public purpose. We have no hesitation
to hold that the purpose for acquisition does not fall
within the ambit of public purpose as defined under section
3(f)(vi) of the Act and the acquisition is for a company as
defined under section 3(e) of the Act whereby it is
imperative that the procedure as set out under Part VII of
the Act is followed and the acquisition proceedings are
undertaken. The decisions cited on behalf of the
respondents State authorities as well as respondent no.4 are
not applicable in the facts of this case.
17. The learned Counsel for the respondent no.4
relied upon the provisions of section 15A of the Act and
raised preliminary objection to the maintainability of this
petition. He contended that the petitioners have an
alternative remedy under the Act itself and, therefore, the
petition need not be entertained. This submission do not
commend to us and we reject the preliminary objection.
The learned Counsel further submitted that one of
the petitioners has made plotting of some portion of his
land under acquisition and sold plots by registered sale
deed. The copies of some of those sale deeds have been
brought on record. The respondent no.4, therefore, alleges
that the challenge to the land acquisition proceedings is
not bonafide and in any case, the petitioners are determined
to sell the subject land for commercial purpose or for
residential purpose by making plots. We have perused the
copies of the sale deeds brought on record and we have noted
that they were registered prior to issuance of the
notification under section
4(1) of the Act. The petitioners
have submitted before us a written undertaking that they
shall not alienate the land to any third party by any mode
and the land shall be used by themselves for their
livelihood.
18. We make it clear that we have not dealt with any
other issues raised by the petitioners and the allegations
made by the petitioners against respondents are not germane
for examining whether the subject acquisition is for public
purpose. The Government Resolution dated 30th October, 1996
does not support the contentions of the respondent no.4 that
its proposal to provide for a Sugar School is as per the
State policy and, therefore, the acquisition is for public
purpose. It was necessary for the respondent no.4 to have
submitted the schemes for the proposed housing as well as
school after signing the agreement dated 24.10.2000. The
Collector ought to have made an inquiry regarding the
proposed schemes, processed the proposal for approval to the
State Government and the acquisition proceedings ought to
have been initiated after the proposals were approved by the
appropriate authorities so as to make the purpose for
acquisition as public purpose within the meaning of
section 3(f)(vi) of the Act. This has not been done and,
therefore, the impugned notifications issued under section 4
of the Act are unsustainable as they clearly state that the
subject land was sought to be acquired for a public purpose.
The law laid down by the Apex Court in the case of Srinivasa
Cooperative House Building Society Ltd. (supra) and H.M.T.
House Building Co-op. Society (supra) is squarely
applicable to the facts of this case.
19. In the result, we allow the petition and quash
and set aside the notification published in the gazette on
18th January, 2001 and the amended notification published in
the gazette on 20th September, 2001 as well as the
declaration under section 6 of the Act published in the
gazette on 20.12.2001. Rule is made absolute accordingly,
with no order as to costs.
20Before parting with the case, we make it clear
that the authority of the respondents to proceed under Part
VII of the Act for the subject acquisition shall not, in any
way, be affected by this decision.