{"id":230251,"date":"2002-02-22T00:00:00","date_gmt":"2002-02-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shivaji-so-trimbak-jadhav-age-35-vs-the-state-of-maharashtra-the-on-22-february-2002"},"modified":"2015-11-07T07:50:29","modified_gmt":"2015-11-07T02:20:29","slug":"shivaji-so-trimbak-jadhav-age-35-vs-the-state-of-maharashtra-the-on-22-february-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shivaji-so-trimbak-jadhav-age-35-vs-the-state-of-maharashtra-the-on-22-february-2002","title":{"rendered":"Shivaji S\/O Trimbak Jadhav, Age 35 … vs The State Of Maharashtra, The … on 22 February, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shivaji S\/O Trimbak Jadhav, Age 35 … vs The State Of Maharashtra, The … on 22 February, 2002<\/div>\n
Bench: B Marlapalle, N Patil<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 1. We had heard this petition on 23.1.2002,
\n24.1.2002 as well as on 4.2.2002. After the respondents had
\nfiled reply, the petition was heard at length on 20.2.2002.\n<\/p>\n
 2. Rule. The learned Government Pleader waives
\nservice for respondents no.1 to 3 and Shri Hon, learned
\nAdvocate waives service for respondent no.4. The respondent
\nno.5 has been impleaded in his capacity as Chairman of
\nrespondent no.4 Karkhana and there is no relief sought
\nagainst him. He is a formal party.\n<\/p>\n
 3. Rule taken up for final hearing forthwith.\n<\/p>\n
 4. The petitioners are residents of village Nivali
\nand Borgaon of Latur taluka and are agriculturists. They
\nhold agricultural lands in Gat No.47 and 48 and the
\nagricultural lands owned by them were sought to be acquired
\nby the respondents no.1 to 3 at the instance of respondent
\nno.4 by issuing notification dated 8.2.2001 under section
\n4(1) of the Land Acquisition Act, 1894 (the Act for
\nshort). The land sought to be acquired from the petitioners
\nis, as under:\n<\/p>\n
 Petitioner Number & NameArea Gat No.\n<\/p>\n
  ————————————————————\n<\/p>\n
1.Shivaji Trimbak Jadhav 40 R. 47\n<\/p>\n
2.Shahaji Trimbak Jadhav 4 H.41 R.47\n<\/p>\n
3.Bharat Kashinath Jadhav 6 H.60 R.48\n<\/p>\n
4.Mahadeo Maruti Ingle 1 H.21 R.48\n<\/p>\n
5.Dagdubai w\/o Govind Bidve 81 R.48\n<\/p>\n
———————————————————–\n<\/p>\n
 5. The petitioners had submitted their objections
\nduring the course of section 5A enquiry and when their
\nobjections were rejected, they filed this petition on or
\nabout 23rd July, 2001. During the pendency of this
\npetition, the respondents nos. 1 to 3 issued corrigendum to
\nthe notification under section
\n4(1) of the Act and the same
\nwas published in the Government Gazette on 20.12.2001.
\nFresh enquiry under section 5A of the Act was undertaken and
\nthe objections raised by the petitioners were again
\nrejected.\n<\/p>\n
 6. The petitioners contend that by the subject
\nacquisition, they would be landless, the land is being
\nacquired under the colourable exercise of power and with
\nmalafide intentions, the respondent no.4 has surplus land
\nadmeasuring about 100 acres and it does not require any
\nfurther land, the respondent no.4 has issued press
\nstatements declaring that it has a crushing capacity of 1250
\nM.T. and about 100 acres of land is reserved for future
\nexpansion. In addition, an advertisement issued by the
\nrespondent no.4 was published in some of the local
\nnewspapers for leasing out shops to be constructed in the
\npremises of the respondent no.4 factory thereby, indicating
\nthat the land was being utilised for commercial purposes and
\nadditional land was being sought for the same purpose. The
\nacquisition under challenge is not for the purpose which is
\nmentioned in the acquisition notice. In the original
\nnotification under section
\n4(1) of the Act, the purpose for
\nwhich the land was being sought was stated to be Educational
\nand Cultural Schemes. The same was changed, in the amended
\nnotification published in the gazette on 20.12.2000, to
\nFarmers Home, Sugar School and Cane Yard. This was done
\nsolely because the respondents nos.1 to 3 took note of the
\nchallenge raised in this petition that the original purpose
\nmentioned in the notification published on 18.1.2001 did not
\nfall within the ambit of public purpose as defined under
\nthe Act and at no point of time, the schemes for which the
\nland was sought to be acquired, have been sanctioned by the
\nState Government prior to issuance of the original or
\namended notification under section 4 of the Act. In support
\nof the allegations on the ground of colourable exercise and
\nmalafides, the petitioners stated that the subject land is
\nnot located adjacent to the land which was already acquired
\nand the land is exactly opposite the respondent no.4 factory
\npremises, separated by a public road. The respondent no.4
\ndoes not require any further land specially, when it has
\nsurplus land in its possession and the existing land of
\nabout 200 acres acquired by the respondent no.4 has
\nvirtually enveloped some private land which is not sought to
\nbe acquired. It is also contended that the respondents no.1
\nto 3 have acted in haste and committed illegalities as well
\nas they have not verified the Government policy of not
\nacquiring the land when the land-holders become landless,
\nonly because of influence of the respondent no.5. We make
\nit clear that we need not consider this issue and specially,
\nwhen we have already held that the respondent no.5 is only a
\nformal party. The land is sought to be acquired for
\nrespondent no.4 and we have to examine only the role of
\nrespondent no.4 vis-a-vis the contentions raised by the
\npetitioners challenging the action of respondents no.1 to 3.\n<\/p>\n
 7. The affidavits on behalf of the respondents no.1
\nto 3 and 4 have been filed before us and the petition has
\nbeen opposed. At one stage, the State Government as well as
\nthe respondent no.4 had relied upon the provisions of
\nsection 3(cc) read with section 3(f)(iv) of the Act and
\nsubmitted that the respondent no.4 being a society owned and
\ncontrolled by the State, the land under acquisition was for
\na public purpose within the meaning of section 3(f)(iv) of
\nthe Act. However, this contention was not subsequently
\npursued and rightly so.\n<\/p>\n
 8. The learned Special Counsel appearing for the
\nrespondents no.1 to 3 emphasized that the subject
\nacquisition is for the public purpose though it is at the
\ninstance of respondent no.4 and none of the petitioners
\nwould become landless. He also submitted that the
\nacquisition is for the welfare of all the shareholders of
\nrespondent no.4 and there is no likelihood of any prejudice
\nto any of the petitioners. The petitioners are entitled for
\ncompensation under the scheme of the Act and there was no
\nintention to acquire petitioners land forcibly. The
\nallegations of colourable exercise of power and malafides
\netc. have been refuted. In defence of the acquisition
\nproceedings, the learned Special Counsel has relied upon the
\nfollowing decisions of the Apex Court:\n<\/p>\n
 1) Smt. Somawanti and others v. State of Punjab .\n<\/p>\n
 2) Raja Anand Brahma Shah v. The State of Uttar Pradesh
\nand others<\/a> .\n<\/p>\n
 3) Jage Ram and others v. State of Haryana (AIR<\/a> 1971 SC
\n1035).\n<\/p>\n
 4) State of Gujarat v. Sankalchand .\n<\/p>\n
 5) Srinivasa Coop. House Building Society Ltd. v. Madam
\nGurumurthy Sastry and others<\/a> .\n<\/p>\n
 6) Bajirao T. Kote (Dead) By Lrs. and another v. State
\nof Maharashtra and others .\n<\/p>\n
 7) H.M.T. House Building Co-operative Society v. Syed
\nKhader and others<\/a> .\n<\/p>\n
 8) State of Tamil Nadu and others v. L. Krishnan and
\nothers<\/a> .\n<\/p>\n
 9) Scindia Employees Union v. State of Maharashtra and
\nothers<\/a> .\n<\/p>\n
 10) Venkataswamappa v. Special Deputy Commissioner<\/a> .\n<\/p>\n
 11) State Govt. Houseless Harijan Employees Association v.
\nState of Karnataka and others (AIR<\/a> 2001 SC 437).\n<\/p>\n
 9. The respondent no.4, on the other hand, stated
\nthat the subject land was sought to be acquired for a
\nco-operative society registered under the Maharashtra
\nCooperative Societies Act, 1960 which is a company within
\nthe meaning of section 3(e)(iii) of the Act and the
\nacquisition at its instance was for a public purpose within
\nthe meaning of section 3(f)(vi) of the Act. The respondent
\nno.4 passed a resolution on 24.10.2000 for acquisition of
\nthe subject land admeasuring 13 Hectares and 43 Ares and the
\nsame was submitted to the Collector, Latur who in turn, has
\ntaken further steps under the Act. The Karkhana requires
\nthe subject land for its purpose and in normal course, the
\nacquisition is sought to be made by following due process of
\nlaw. It has stoutly denied the allegations of malafides and
\ncolourable exercise of power. The proposals for
\nconstruction of Farmers Home, Sugar School and Cane Yard
\nare going to benefit the cultivators, members of respondent
\nno.4 as well as the harvesting labour and, therefore, the
\nland sought to be acquired is for public purpose. It is
\nalso stated that the acquisition proceedings in respect of
\nland from Gat Nos.655, 650, 22 and 25 admeasuring about 5
\nHectares is in progress and the same is also at the instance
\nof the Karkhana. Once, the Co-operative society has passed
\na resolution which has been acted upon by the competent
\nauthorities, the requirements of clause (vi) of section 3(f)
\nof the Act are satisfied and, therefore, the challenge
\nraised to the subject acquisition is without any substance
\nand the same is required to be rejected by this Court. In
\nsupport of the defence, the learned Counsel for the
\nrespondent no.4 has relied upon the following decisions of
\nthe Supreme Court:\n<\/p>\n
 1) Land Acquisition Collector and another v. Durga Pada
\nMukherjee and others .\n<\/p>\n
 2) Bajirao T. Kote (Dead) By Lrs. and another v. State
\nof Maharashtra and others .\n<\/p>\n
 In addition, reliance has been placed on the following
\ntwo judgments of this Court:\n<\/p>\n
 1) Chiman Narayan Taras and others v. State of Maharashtra
\nand others .\n<\/p>\n
 2) Murlidhar Madhusudan Roplekar v. The State of
\nMaharashtra and ors. (2000(3) ALL MR 358).\n<\/p>\n
 10. We are required to decide whether the subject
\nacquisition falls within the provisions of section 3(f)(vi)
\nof the Act i.e. public purpose or whether the acquisition
\nis for a company within the meaning of section 3(e) of the
\nAct thereby requiring the compliance of Part VII. The
\nlearned Government Pleader produced before us, the original
\nrecord and, therefore, some of the relevant facts are noted,
\nas under:-\n<\/p>\n
 The respondent no.4 has acquired, by private
\nnegotiations, about 200 acres of agricultural land and it
\ncame to be registered under the Maharashtra Cooperative
\nSocieties Act, 1960 on 21st March, 2000. It has crushing
\ncapacity of 1250 M.T. Its resolution dated 24.10.2000 was
\nreceived by the Collector and consequently, an agreement
\ncame to be signed between the Collector and the respondent
\nno.4 on the same day. This agreement is for the purpose of
\ncomplying the requirements of Part VII of the Act as is
\nclear from its terms. One of the conditions was for the
\nKarkhana to deposit an amount of Rs.16,78000\/- within one
\nweek and also to comply with other requirements of Part VII
\nof the Act. The purpose for acquisition as was stated in
\nthe resolution passed by the Karkhana was residential
\narrangement for the harvesting labour, parking lot for
\ntransportation vehicles, sugar school and fuel station.
\nHowever, in the agreement signed between the parties on the
\nsame day, the purpose mentioned was administrative building,
\nfarmers home, sugar school and cane yard.\n<\/p>\n
 On 20.12.2000, the Collector, Latur passed an order
\nunder section 3 read with section 51 of the Act and directed
\nthe Sub Divisional Officer to act as Land Acquisition
\nOfficer and take appropriate steps for acquisition of the
\nland. On the very next day, the Collector passed another
\norder directing the Sub Divisional Officer to issue
\nnotification under section
\n4 of the Act and inform the
\nTahsildar, accordingly. In addition, the Assistant
\nRegistrar, Latur was informed against registering any
\nagreement of sale or transfer of the subject land. On
\n26.12.2000, the Land Acquisition Officer forwarded
\nnotification under section
\n4(1) of the Act for publication
\nin the Government gazette and it came to be published on
\n18.1.2001. The purpose for acquisition mentioned in the
\nsaid notification was “educational and cultural schemes.”
\nNotifications under section
\n4(1) of the Act were
\nsubsequently, served on the petitioners. They submitted
\ntheir replies through an Advocate and opposed the
\nacquisition. On the purpose of Sugar School, it was very
\nspecifically stated by the petitioners that the villages
\nNivali and Borgaon were located at a distance of about 2 Kms
\nfrom the respondent no.4 factory and in both the villages,
\nthere are secondary schools. In such circumstances, there
\nwas no necessity for the proposed Sugar School. The Sub
\nDivisional Officer conducted an enquiry under section 5A of
\nthe Act after hearing both the parties. The respondent no.4
\nwas also represented by an Advocate in the said enquiry. In
\nthe mean while, the Collector went on reminding the Land
\nAcquisition Officer to expedite the process. Finally, the
\nobjections raised by the petitioners were rejected by the
\nSub Divisional Officer. However, vide letter dated
\n27.6.2001, the Sub Divisional Officer approached the
\nGovernment Printing Press, Aurangabad for amendment to the
\noriginal notification published under section
\n4(1) of the
\nAct. The same amendment was published in the Government
\nGazette on 27th September, 2001 and the purpose for
\nacquisition was changed to Farmers Home, Sugar School and
\nCane Yard in place of Educational and Cultural Schemes.
\nFresh enquiry under section 5A of the Act was conducted.
\nThe petitioners again appeared in the said enquiry through
\nan Advocate. The respondent no.4 also was represented by an
\nAdvocate and the objections raised by the petitioners came
\nto be rejected by the Land Acquisition Officer vide his
\norder dated 24.10.2001. The petitioners have brought on
\nrecord the amended notifications and it is required to be
\nnoted at this stage that a fresh notification under section<\/p>\n
4(1) of the Act was not issued and it was only a corrigendum
\nregarding the change of purpose for acquisition. The
\ndeclaration under section 6 of the Act was published in the
\nGovernment Gazette on 20.12.2001 i.e. during the pendency
\nof this petition.\n<\/p>\n
 11. On 12.9.2001, this Court had issued notice before
\nadmission. Civil Application No.155 of 2001 was allowed in
\nterms of prayer clause (B) vide order dated 23.1.2002.
\n12In the case of Smt. Somawanti and others
\n(supra), which has been relied upon by the respondents no.1
\nto 3, the Supreme Court in its majority view inter alia,
\nheld, as under:\n<\/p>\n
  “The object of the law is to empower Government
\nto acquire land only for a public purpose or for
\na company, and, where it is for a company the
\nacquisition is subject to the provisions of Part
\nVII. The acquisition for a company contemplated
\nby Part VII is confined only to cases where the
\nGovernment is satisfied that the purpose of
\nobtaining the land is erection of dwelling houses
\nfor workmen employed by the company or for the
\nprovision of amenities directly connected
\ntherewith or for the construction of some work
\nwhich is likely to prove directly useful to the
\npublic.”\n<\/p>\n
 This view has been consistently followed and the learned
\nCounsel for the State Government is right in his contentions
\nthat the issue of “public purpose” is a subjective
\nsatisfaction of the State Government. Once, the Government
\nhas arrived at a conclusion that the land was sought to be
\nacquired for public purpose, that decision is not a matter
\nof judicial review per se. We are not testing the
\nGovernments wisdom in terming the subject acquisition for
\npublic purpose. We are examining whether the subject
\nacquisition proceedings could be held to be for public
\npurpose on the basis of the purpose mentioned in the
\nnotification originally issued or subsequently amended.
\nThis Court is not estopped from testing the acquisition
\nproceedings qua the provisions of the Act. The petitioners
\nare specific in their contentions that the purpose of
\nacquisition is not a public purpose and the purpose of
\nacquisition was subsequently, changed during the pendency of
\nthis petition, having realised that the original purpose did
\nnot fall within the meaning of public purpose. Most of the
\ndecisions relied upon by the learned Counsel for the
\nGovernment, relate to the Government forming opinion about
\npublic purpose and, therefore, they are not relevant for
\ndeciding the issues which we have framed above.\n<\/p>\n
 13. Section 3(e) of the Act defines the term
\n“company” and section 3(f) defines the term “public
\npurpose”. The same definitions are reproduced, as under:
\n“(e) the expression “Company” means –\n<\/p>\n
 (i) a company as defined in section 3 of the
\nCompanies Act, 1956, other than a Government
\ncompany referred to in clause (cc);\n<\/p>\n
 (ii) a society registered under the Societies
\nRegistration Act, 1860, or under any
\ncorresponding law for the time being in force in
\na State, other than a society referred to in
\nclause (cc);\n<\/p>\n
 (iii) a co-operative society within the meaning
\nof any law relating to co-operative societies for
\nthe time being in force in any State, other than
\na co-operative society referred to in clause
\n(cc).”\n<\/p>\n
 “(f) the expression “public purpose” includes –\n<\/p>\n
 (i) the provision of village-sites or the
\nextension, planned development or improvement of
\nexisting village-sites;\n<\/p>\n
 (ii) the provision of land for town or rural
\nplanning;\n<\/p>\n
 (iii) the provision of land for planned
\ndevelopment of land from public funds in
\npursuance of any scheme or policy of Government
\nand subsequent disposal thereof in whole or in
\npart by lease, assignment or outright sale with
\nthe object of securing further development as
\nplanned;\n<\/p>\n
 (iv) the provision of land for a corporation
\nowned or controlled by the State;\n<\/p>\n
 (v) the provision of land for residential
\npurposes to the poor or landless or to persons
\nresiding in areas affected by natural
\ncalamities, or to persons displaced or affected
\nby reason of the implementation of any scheme
\nundertaken by Government, any local authority or
\na corporation owned or controlled by the State;\n<\/p>\n
 (vi) the provision of land for carrying out any
\neducational, housing, health or slum clearance
\nscheme sponsored by Government or by any
\nauthority established by Government for carrying
\nout any such scheme, or, with the prior approval
\nof the appropriate Government, by a local
\nauthority, or a society registered under the
\nSocieties Registration Act, 1860 (21 of 1860), or
\nunder any corresponding law for the time being in
\nforce in a State, or a co-operative society
\nwithin the meaning of any law relating to
\nco-operative societies for the time being in
\nforce in any State;\n<\/p>\n
 (vii) the provision of land for any scheme of
\ndevelopment sponsored by Government or, with the
\nprior approval of the appropriate Government, by
\na local authority;\n<\/p>\n
 (viii) the provisions of any premises or building
\nfor locating a public office, but does not
\ninclude acquisition of land for Companies.”\n<\/p>\n
 Both these definitions have been amended by Act
\n68 of 1984. Section
\n4(1) of the Act states that whenever it
\nappears to the appropriate Government, the Commissioner, or
\nLand Acquisition Officer that land in any locality is needed
\nor is likely to be needed for any public purpose, or for a
\nCompany a notification to that effect, shall be published in
\nthe Official Gazette and in two daily newspapers circulating
\nin that locality of which at least one shall be in the
\nregional language and the Collector shall cause public
\nnotice of the substance of such notification to be given at
\nconvenient places in the said locality the last of the dates
\nof such publication and the giving of such public notice,
\nbeing hereinafter referred to as the date of the publication
\nof the notification. The acquisition thus, stated under
\nsection
\n4(1) of the Act is of two types namely, for public
\npurpose and for a company. The acquisitions for companies
\nare covered in Part VII i.e. from Section 38A to 44B of the
\nAct.\n<\/p>\n
 14. Section 38A of the Act states that an industrial
\nconcern, ordinarily employing not less than one hundred
\nworkmen owned by an individual or by an association of
\nindividuals and not being a Company, desiring to acquire
\nland for the erection of dwelling houses for workmen
\nemployed by the concern or for the provisions of amenities
\ndirectly connected therewith shall, in so far as it concerns
\nthe acquisition of such land, be deemed to be a Company for
\nthe purpose of said Part, and references to Company in
\nsections 4, 5A, 6, 7 and 50 shall be interpreted as
\nreferences also to such concern.\n<\/p>\n
 Section 39 of the Act states that the provisions of
\nsection 6 to 16 (both inclusive) and section 18 to 37, (both
\ninclusive) shall not be put in force in order to acquire
\nland for any Company under the said Part unless with the
\nprevious consent of the appropriate Government, nor unless
\nthe Company shall have executed the agreement hereinafter
\nmentioned i.e. under section 41.\n<\/p>\n
 Section 40 of the Act contemplates previous enquiry by
\nthe appropriate Government for processing the proposal of
\nacquisition for a company. Section 41 states that if the
\nappropriate Government is satisfied after considering the
\nreport, if any, of the Collector under section 5A,
\nsub-section (2), or on the report of the officer making an
\ninquiry under section 40 that the proposed acquisition is
\nfor any of the purposes referred to in clause (a) or clause
\n(aa) or clause (b) of sub-section (1) of section 40, it
\nshall require the Company to enter into an agreement with
\nthe appropriate Government providing, to the satisfaction of
\nthe appropriate Government, for the matters stated therein
\ni.e. payment to the appropriate Government of the cost of
\nthe acquisition, etc.  <\/p>\n
 Section 42 of the Act states that every such
\nagreement shall, as soon as may be after its execution, be
\npublished in the Official Gazette and shall thereupon so far
\nas regards the terms on which the public shall be entitled
\nto use the work have the same effect as if it had formed
\npart of the said Act.\n<\/p>\n
 Section 44A puts restriction on the Company from
\ntransferring the acquired land whereas section 44B states
\nthat notwithstanding anything contained in the Act, no land
\nshall be acquired under Part VII, except for the purpose
\nmentioned in clause (a) of sub-section (1) of section 40,
\nfor a private company which is not a Government company.\n<\/p>\n
 15. If the impugned acquisition is for public purpose
\nand at the instance of respondent no.4, it must satisfy the
\nrequirements of clause (vi) of Section 3(f) of the Act,
\nnamely, the respondent no.4 ought to have framed a scheme
\nwhich is already sanctioned by the State Government for
\neducational, housing, health, or slum clearance. When we
\npointedly inquired about this condition, it was stated on
\nbehalf of the respondent no.4 that its resolution dated
\n24.10.2000 was forwarded to the Collector which has been
\nduly acted upon and that itself meets the requirements of
\npublic purpose. In addition, our attention was invited to
\nthe Government Resolution dated 30th October, 1996 in
\nsupport of this contention as well. This resolution states
\nthat the Zilla Parishads shall take appropriate steps to
\nprovide schooling facilities to the children of harvesting
\nlabour working in or for the sugar factories, titled as
\n“Sugar Schools”. Whether these steps taken by the
\nrespondent no.4 really meet the requirements of public
\npurpose is required to be examined on the touchstone of the
\nlaw laid down by the Supreme Court from time to time and we
\nwill refer to the following two judgments.\n<\/p>\n
 In the case of Srinivasa Cooperative House
\nBuilding Society Ltd. v. Madam Gurumurthy Sastry and
\nothers<\/a>  (supra), similar issue was
\nconsidered by the Apex Court. The land was sought to be
\nacquired for a cooperative society registered under the
\nAndhra Pradesh Cooperative Societies Act and the same
\nacquisition was objected to on the ground that it was not
\nfor public purpose. While dealing with the respective
\ncontentions, a two Judge Bench of the Apex Court observed:\n<\/p>\n
 (a) “Public purpose is not capable of precise
\ndefinition. Each case has to be considered in
\nthe light of the purpose for which acquisition is
\nsought for. It is to serve the general interest
\nof the community as opposed to the particular
\ninterest of the individual. Public purpose
\nbroadly speaking would include the purpose in
\nwhich the general interest of the society as
\nopposed to the particular interest of the
\nindividual is directly and vitally concerned.
\nGenerally the executive would be the best judge
\nto determine whether or not the impugned purpose
\nis a public purpose. Yet it is not beyond the
\npurview of judicial scrutiny. The interest of a
\nsection of the society may be public purpose when
\nit is benefited by the acquisition. The
\nacquisition in question must indicate that it was
\ntowards the welfare of the people and not to
\nbenefit a private individual or group of
\nindividuals joined collectively. Therefore,
\nacquisition for anything which is not for a
\npublic purpose cannot be done compulsorily.\n<\/p>\n
 (b) There is no provision in the Act to say that when
\na land is required for a company, it may also be
\nfor a public purpose. Therefore, if a company,
\nnamely a Cooperative Society registered under the
\nCentral or State Cooperative Societies Act,
\npreceding 1984 Amendment Act, had to acquire the
\nland it had to do so in strict compliance with
\nChapter VII. If the company, (Cooperative
\nSociety) requires land for any purpose other than
\nthose mentioned in Section 40, then no compulsory
\nacquisition under the Act is possible.\n<\/p>\n
 (c) Even the acquisition for a company, unless
\nutilisation of the land so acquired is integrally
\nconnected with public use, resort to the
\ncompulsory acquisition under Chapter VII cannot
\nbe had. Even when Chapter VII was invoked, the
\nrequirements of Section 40 and Section 41 are
\nmandatory and shall be strictly complied with.\n<\/p>\n
 (d) Notwithstanding anything contained in the Act,
\ni.e., despite the compliance with Chapter VII, no
\nland should be acquired under Chapter VII except
\nfor the purpose mentioned in clause (a) of
\nsubsection (1) of Section 40, for a private
\ncompany which is not a Government company and
\nthat such company shall not be entitled after the
\nacquisition under Chapter VII to transfer the
\nsaid land or any part thereof by sale, mortgage,
\ngift, lease or otherwise except with the previous
\nsanction of the appropriate Government.”\n<\/p>\n
 The Supreme Court noted that the cooperative
\nsociety for which the land was sought to be acquired had not
\nsubmitted any scheme to the State Government and such a
\nscheme was never approved by the State Government prior to
\nissuance of the notification under section
\n4(1) of the Act.\n<\/p>\n
The Court held that to meet the requirements of public
\npurpose, within the meaning of section 3(f)(vi) of the Act,
\nsuch a prior approval\/sanction by the State Government on
\nthe proposed scheme as submitted by the cooperative society
\nwas a must and failure in that regard would lead to the
\nconclusion that the purpose of acquisition was not a public
\npurpose.\n<\/p>\n
 We then refer to a three Judge Bench judgment of
\nthe Apex Court in the case of H.M.T. House Building Coop.
\nSociety v. Syed Khader and others<\/a>
\n(supra), which has elaborately dealt with the same issue and
\nthis decision is squarely applicable to the case at hand.
\nWhen the earlier two notifications issued under section
\n4(1)
\nwere not acted upon by the State Government, the third
\nnotification was issued and the acquisition proceedings were
\nset in motion. The proceedings were challenged before the
\nKarnataka High Court. The High Court allowed the petition.
\nThe appeals before the Supreme Court came to be dismissed
\nand it would be apt to reproduce the following observations
\nin the said case in paragraphs 20, 21 and 23.\n<\/p>\n
  “20.Now the question which is to be
\nanswered is as to whether in view of the “20.
\nNow the question which is to be answered is as to
\nwhether in view of the definition of “public
\npurpose” introduced by the aforesaid amending Act
\n68 of 1984 in Section 3(f)(vi), is it open to the
\nappropriate Government to acquire land for
\ncooperative society for housing scheme without
\nmaking proper enquiry about the members of the
\nSociety and without putting such housing
\nco-operative society to term in respect of nature
\nof construction, the area to be allotted to the
\nmembers and restrictions on transfer thereof?\n<\/p>\n
 21.According to us, in Section 3(f)(vi)
\nthe expression “housing” has been used along with
\neducational and health schemes. As such the
\nhousing scheme contemplated by Section 3(f)(vi)
\nshall be such housing scheme which shall serve
\nthe maximum number of members of the society.
\nSuch housing scheme should prove to be useful to
\nthe public. That is why the Parliament while
\nintroducing a new definition of “public purpose”,
\nsaid that any scheme submitted by any cooperative
\nsociety relating to housing, must receive prior
\napproval of the appropriate Government and then
\nonly the acquisition of the land for such scheme
\ncan be held to be for public purpose. If
\nrequirement of Section 3(f)(vi) is not strictly
\nenforced, every housing cooperative society shall
\napproach the appropriate Government for
\nacquisition by applying Section 3(f)(vi) instead
\nof pursuing the acquisition under Part VII of the
\nAct which has become more rigorous and
\nrestrictive. In this background, it has to be
\nheld that the prior approval, required by Section
\n3(f)(vi), of the appropriate Government is not
\njust a formality; it is a condition precedent to
\nthe exercise of the power of acquisition by the
\nappropriate Government for a housing scheme of a
\nco-operative society.\n<\/p>\n
 23……………… In spite of the
\nrepeated query, the learned counsel appearing for
\nthe appellant society could not point out or
\nproduce any order of the State Government under
\nSection 3(f)(vi) of the Act granting prior
\napproval and prescribing conditions and
\nrestrictions in respect of the use of the lands
\nwhich were to be acquired for a public purpose.
\nThere is no restriction or bar on the part of the
\nappellant society on carving out the size of the
\nplots or the manner of allotment or in respect of
\nconstruction over the same. That is why the
\nframers of the Act have required the appropriate
\nGovernment to grant prior approval of any housing
\nscheme presented by any cooperative society
\nbefore the lands are acquired treating such
\nrequirement and acquisition for public purpose.
\nIt is incumbent on part of the appropriate
\ngovernment while granting approval to examine
\ndifferent aspects of the matter so that it may
\nserve the public interest and not the interest of
\nfew who can as well afford to acquire such lands
\nby negotiation in open market. According to us,
\nthe State Government has not granted the prior
\napproval in terms of Section 3(f) of the Act to
\nthe housing scheme in question. The power under
\nSections
\n4(1) and 6(1) of the Act has been
\nexercised for extraneous consideration and at the
\ninstance of the persons, who had no role in the
\ndecision making process – whether the acquisition
\nof the lands in question shall be for a public
\npurpose. This itself is enough to vitiate the
\nwhole acquisition proceeding and render the same
\nas invalid.”\n<\/p>\n
 The Apex Court finally concluded that the
\nprovisions of section 3(f)(vi) of the Act were not complied
\nwith inasmuch as, there was no prior approval of the State
\nGovernment as required by the said section before the steps
\nfor acquisition of the lands were taken. The appellant
\nsociety had not submitted any plans which were required to
\nbe approved by the State Government regarding the proposed
\nhousing scheme.\n<\/p>\n
 16. In the case at hand, admittedly, there is no such
\nscheme either for the farmers home, sugar school or cane
\nyard submitted to the State Government and which has been
\nsubsequently, approved by the State Government before the
\nnotification under section
\n4(1) was issued. On the other
\nhand, the agreement executed on 24.10.2000 specifically
\ndeals with the proceedings under Part VII of the Act and we
\nfail to see any reasons as to why this agreement was not
\ntaken note of by the Collector, Latur while issuing the
\nnotification under section
\n4(1) of the Act. If this
\nagreement was acted upon in its true spirit, the acquisition
\ncould have proceeded for the company and under Part VII of
\nthe Act. This has not been done. The agreement was
\nobviously given a go by and the challenge raised by the
\npetitioners is being fought on the ground that the
\nacquisition was for public purpose. We have no hesitation
\nto hold that the purpose for acquisition does not fall
\nwithin the ambit of public purpose as defined under section
\n3(f)(vi) of the Act and the acquisition is for a company as
\ndefined under section 3(e) of the Act whereby it is
\nimperative that the procedure as set out under Part VII of
\nthe Act is followed and the acquisition proceedings are
\nundertaken. The decisions cited on behalf of the
\nrespondents State authorities as well as respondent no.4 are
\nnot applicable in the facts of this case.\n<\/p>\n
 17. The learned Counsel for the respondent no.4
\nrelied upon the provisions of section 15A of the Act and
\nraised preliminary objection to the maintainability of this
\npetition. He contended that the petitioners have an
\nalternative remedy under the Act itself and, therefore, the
\npetition need not be entertained. This submission do not
\ncommend to us and we reject the preliminary objection.
\nThe learned Counsel further submitted that one of
\nthe petitioners has made plotting of some portion of his
\nland under acquisition and sold plots by registered sale
\ndeed. The copies of some of those sale deeds have been
\nbrought on record. The respondent no.4, therefore, alleges
\nthat the challenge to the land acquisition proceedings is
\nnot bonafide and in any case, the petitioners are determined
\nto sell the subject land for commercial purpose or for
\nresidential purpose by making plots. We have perused the
\ncopies of the sale deeds brought on record and we have noted
\nthat they were registered prior to issuance of the
\nnotification under section
\n4(1) of the Act. The petitioners
\nhave submitted before us a written undertaking that they
\nshall not alienate the land to any third party by any mode
\nand the land shall be used by themselves for their
\nlivelihood.\n<\/p>\n
 18. We make it clear that we have not dealt with any
\nother issues raised by the petitioners and the allegations
\nmade by the petitioners against respondents are not germane
\nfor examining whether the subject acquisition is for public
\npurpose. The Government Resolution dated 30th October, 1996
\ndoes not support the contentions of the respondent no.4 that
\nits proposal to provide for a Sugar School is as per the
\nState policy and, therefore, the acquisition is for public
\npurpose. It was necessary for the respondent no.4 to have
\nsubmitted the schemes for the proposed housing as well as
\nschool after signing the agreement dated 24.10.2000. The
\nCollector ought to have made an inquiry regarding the
\nproposed schemes, processed the proposal for approval to the
\nState Government and the acquisition proceedings ought to
\nhave been initiated after the proposals were approved by the
\nappropriate authorities so as to make the purpose for
\nacquisition as public purpose within the meaning of
\nsection 3(f)(vi) of the Act. This has not been done and,
\ntherefore, the impugned notifications issued under section 4
\nof the Act are unsustainable as they clearly state that the
\nsubject land was sought to be acquired for a public purpose.
\nThe law laid down by the Apex Court in the case of Srinivasa
\nCooperative House Building Society Ltd. (supra) and H.M.T.
\nHouse Building Co-op. Society (supra) is squarely
\napplicable to the facts of this case.\n<\/p>\n
 19. In the result, we allow the petition and quash
\nand set aside the notification published in the gazette on
\n18th January, 2001 and the amended notification published in
\nthe gazette on 20th September, 2001 as well as the
\ndeclaration under section 6 of the Act published in the
\ngazette on 20.12.2001. Rule is made absolute accordingly,
\nwith no order as to costs.\n<\/p>\n
20Before parting with the case, we make it clear
\nthat the authority of the respondents to proceed under Part
\nVII of the Act for the subject acquisition shall not, in any
\nway, be affected by this decision.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shivaji S\/O Trimbak Jadhav, Age 35 … vs The State Of Maharashtra, The … on 22 February, 2002 Bench: B Marlapalle, N Patil 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-230251","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShivaji S\/O Trimbak Jadhav, Age 35 ... vs The State Of Maharashtra, The ... on 22 February, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shivaji-so-trimbak-jadhav-age-35-vs-the-state-of-maharashtra-the-on-22-february-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shivaji S\/O Trimbak Jadhav, Age 35 ... vs The State Of Maharashtra, The ... on 22 February, 2002 - 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