{"id":58646,"date":"2009-11-07T00:00:00","date_gmt":"2009-11-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/percival-joseph-pareira-vs-the-special-land-acquisition-on-7-november-2009"},"modified":"2016-08-03T20:48:47","modified_gmt":"2016-08-03T15:18:47","slug":"percival-joseph-pareira-vs-the-special-land-acquisition-on-7-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/percival-joseph-pareira-vs-the-special-land-acquisition-on-7-november-2009","title":{"rendered":"Percival Joseph Pareira vs The Special Land Acquisition … on 7 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Percival Joseph Pareira vs The Special Land Acquisition … on 7 November, 2009<\/div>\n
Bench: A.S. Oka<\/div>\n
    kbp                                       1                             wp1211-09.sxw\n\n\n\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                       \n                        CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                               \n                        WRIT PETITION NO.1211 OF 2009\n\n\n\n\n                                                              \n    Percival Joseph Pareira                                          ..Petitioner \n          Vs.\n\n\n\n\n                                                 \n    1 The Special Land Acquisition Officer\n    2 The State of Maharashtra   \n    3 City & Industrial Development Corporation                     ..Respondents\n                                \n    Mr.S.S.Kulkarni, for petitioner.\n    Mr.A.P.Vanarase, AGP for respondents no.1 and 2.\n    Mr.A.A.Kumbhakoni, i\/b Mr.A.M.Kulkarni,for respondent No.3. \n                                      \n            \n\n\n                                  CORAM : ABHAY S.OKA, J.\n         \n\n\n\n                                       DATE     :  7th November,  2009.\n\n\n\n\n\n    JUDGMENT :\n<\/pre>\n
    1]    The submissions of the learned counsel for the parties were
\n                   th
\n    heard   on   7   October,   2009.     The   judgment   was   reserved.\n<\/p>\n
    Accordingly, the petition is today placed for  judgment.\n<\/p>\n
    2]    This   Writ   Petition   under   Article   227   of   the   Constitution   of <\/p>\n
    India arises out of the proceedings of a reference under Section 18 <\/p>\n
    of the Land Acquisition Act, 1894 (hereinafter referred to as “the <\/p>\n
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\n     kbp                                         2                              wp1211-09.sxw<\/p>\n
    said   Act   of   1894″).     The   petitioner   is   the   claimant   in   the   said <\/p>\n
    reference.  By the impugned order, the third respondent (The City <\/p>\n
    Industrial   Development   Corporation   of   Maharashtra   Limited <\/p>\n
    hereinafter referred to as “CIDCO”) has been directed to be added <\/p>\n
    as an opponent to the land acquisition reference under section 18 <\/p>\n
    of the said Act of 1894.\n<\/p>\n
    3]   A reference will have to be made to the facts of the case. The <\/p>\n
    notification under Section 4 of the said Act of 1894 in respect of
\n                                                      th
\n    the   acquired   land   was   issued   on   24   September,   1986.     The <\/p>\n
    declaration under section 6 of the said Act of 1894 was issued on
\n       th                                                         th
\n    17  September, 1987.  After the award dated 18  September 1989 <\/p>\n
    was made, an application under Section 18 of the said Act of 1894 <\/p>\n
    was filed by the petitioner on the basis of which a reference under <\/p>\n
    section 18 of the said act of 1894 has been made to the Court.  It <\/p>\n
    must be noted here that the third respondent (CIDCO) made an
\n                                         th
\n    application at Exhibit 38 on 7  April, 2004 contending that the said <\/p>\n
    respondent was the beneficiary of the acquisition and on the basis <\/p>\n
    of     an   agreement   made   by   the   said   respondent   with   the <\/p>\n
    government of Maharashtra ,compensation will be payable by the <\/p>\n
    said respondent.  Reliance was placed on sub-section 2 of section <\/p>\n
    50 of the said Act of 1894 and it was contended that the CIDCO <\/p>\n
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\n     kbp                                     3                             wp1211-09.sxw<\/p>\n
    was   a   necessary   party   to   the   land   acquisition   reference   under <\/p>\n
    Section 18 of the said Act of 1894.   By the judgment and order <\/p>\n
              th
\n    dated 27  October, 2004 the said application was rejected.\n<\/p>\n
                   th
\n    4]    On 7  April, 2008, the State of Maharashtra represented by <\/p>\n
    the District Government Pleader moved an application exhibit 113 <\/p>\n
    contending   that   the   CIDCO   being   acquiring   body       was   a <\/p>\n
    necessary party to the said reference under Section 18 of the said <\/p>\n
    Act of 1894.  It was contended that the State has acquired the land <\/p>\n
    subject matter of reference and has transferred the land to CIDCO.\n<\/p>\n
    Therefore, a prayer was made for impleading the CIDCO as the <\/p>\n
    second opponent to the said reference.   The petitioner opposed <\/p>\n
    the same on various grounds contending that the CIDCO was not <\/p>\n
    the acquiring body.   It was contended that CIDCO was neither a <\/p>\n
    necessary nor a proper party.   By the impugned order, the said <\/p>\n
    application made by the State of Maharashtra was allowed and the <\/p>\n
    petitioner was directed to implead the CIDCO as a party opponent <\/p>\n
    to the said reference.\n<\/p>\n
    5]    The learned counsel for the petitioner has made     detailed <\/p>\n
    submissions on this aspect.  Submissions are made  on the basis <\/p>\n
    of various provisions of the Maharashtra Regional Town Planning <\/p>\n
    Act, 1966 (hereinafter referred to as “the   said Act of 1966”).  It is <\/p>\n
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\n     kbp                                          4                              wp1211-09.sxw<\/p>\n
    submitted that under the provisions of the said Act of 1966   the <\/p>\n
    CIDCO   being   a   New   Town   Development   Authority,   there   is   no <\/p>\n
    power vesting in CIDCO under Section 113-A to acquire a land for <\/p>\n
    the   purpose   of   setting   up   a   new   town.     The   submission   is   that <\/p>\n
    CIDCO   was   merely   an   agency   of   the   State   of   Maharashtra   for <\/p>\n
    implementing the project of setting up the new township of New <\/p>\n
    Bombay.         He submitted that the decision to acquire the lands <\/p>\n
    has not been taken by CIDCO but it is the decision of the State of <\/p>\n
    Maharashtra.   It is submitted that sub-section 2 of Section 50 of <\/p>\n
    the said Act of 1894 has no application.  He has placed reliance on <\/p>\n
    various   notifications.       He   has   also   placed   reliance   on   the <\/p>\n
    amendment made to the said Act of 1966 in the year 1971.\n<\/p>\n
    6]     Learned counsel for the third respondent  CIDCO submitted <\/p>\n
    that   the   CIDCO   was   established   and   appointed   as   a   Special <\/p>\n
    Planning Authority in relation to New Bombay. He submitted that <\/p>\n
    the CIDCO is a government company and the same is established <\/p>\n
    under section 113 (A) of the said Act of 1966. He pointed out that <\/p>\n
    earlier the entire burden of paying the compensation on account of <\/p>\n
    acquisition   of   lands   for   the   project   of   the   twin   city   of   the   New <\/p>\n
    Bombay was of the State of Maharashtra.  He placed reliance on a
\n                                                th
\n    Government Resolution dated 12   February, 2008 and submitted <\/p>\n
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\n     kbp                                       5                             wp1211-09.sxw<\/p>\n
    that   the   entire   responsibility   for   payment     of   enhanced <\/p>\n
    compensation   of   the   lands   acquired   for   the   project   is   that   of <\/p>\n
    CIDCO.     He   submitted   that   the   issue   involved   in   the   present <\/p>\n
    petition is not whether the CIDCO is the acquiring body or local <\/p>\n
    authority   or   whether   the   CIDCO   acts   as   an   agent   of   the   State <\/p>\n
    Government.  But, the issue is whether the CIDCO was a “person <\/p>\n
    interested” and  whether  CIDCO  is  going  to  ultimately  end  up  in <\/p>\n
    bearing   the   entire   financial   burden   of   paying   whole   amount   of <\/p>\n
    compensation.   He submitted that   the CIDCO is required to pay <\/p>\n
    the compensation amount to the claimants.       He submitted that <\/p>\n
    the term “company” appearing in     section 3   of the said Act of <\/p>\n
    1894 excludes a government company, but the “company” referred <\/p>\n
    to in Section 50 is different and the same words used will have to <\/p>\n
    be construed differently.  He has relied upon decisions of the Apex <\/p>\n
    Court which are dealt with in the later part of this judgment.   He <\/p>\n
    submitted that the CIDCO, in any event, is a person interested, <\/p>\n
    and therefore, is entitled to a notice of  reference under section 18 <\/p>\n
    of the said Act of 1894 in view of clause “b” of Section 20 of said <\/p>\n
    Act   of   1984.   He   submitted   that   the   words   “local   authority”   and <\/p>\n
    “company”   in   the   said   Act   of   1894   would   include   all   bodies   on <\/p>\n
    whose   behalf   the   land   is   acquired.   He   submitted   that   all   such <\/p>\n
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\n     kbp                                       6                             wp1211-09.sxw<\/p>\n
    bodies   are   necessary   and   proper   parties   to   a   reference   under <\/p>\n
    section 18. He submitted that no interference is called for with the <\/p>\n
    impugned order.\n<\/p>\n
    7]   The   learned   AGP   appearing   for   the   State   supported   the <\/p>\n
    impugned judgment and order and submitted that as the CIDCO <\/p>\n
    is required to bear the burden of payment of the compensation as <\/p>\n
    well   as   the   enhanced   compensation,   as   rightly   held   by   the   trial <\/p>\n
    court   ,   the     CIDCO   was   a   necessary   and   proper   party   to   the <\/p>\n
    reference and therefore no interference is called for. The learned <\/p>\n
    counsel   for   the   petitioner   pointed   out   from   the   Government
\n                             th
\n    Resolution dated 12   February, 2008 relied upon by CIDCO that <\/p>\n
    even   under   the   said   Government   Resolution       ,   the   CIDCO   is <\/p>\n
    required   to   pay   the   compensation   amount   on   behalf   of   the <\/p>\n
    Government   of   Maharashtra.   He   pointed   out   that   the   said <\/p>\n
    resolution further provides that at the time of final settlement of the <\/p>\n
    account , an adjustment would be made to give the credit to the <\/p>\n
    CIDCO   of   the   amount   paid   by   way   of   compensation   to   the <\/p>\n
    claimants.\n<\/p>\n
    8]     I   have   given   careful   consideration   to   the   submissions.\n<\/p>\n
    Before   dealing   with   the   submissions,   it   will   be   necessary   to <\/p>\n
    consider the relevant provisions of Act of 1966.  Under Sub-section <\/p>\n
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\n     kbp                                        7                               wp1211-09.sxw<\/p>\n
    (1) of Section 113, the State Government is empowered to issue a <\/p>\n
    notification in the official gazette designating any area as a site for <\/p>\n
    the proposed New Town which shall be named in the notification.\n<\/p>\n
    Under   sub-section   (2),   after   publication   of   the   notification   under <\/p>\n
    sub-section   (1),   for   the   purpose   of   acquiring,   developing   and <\/p>\n
    disposing   of     land   in   the   area   of   a   New   Town,   the   State <\/p>\n
    Government     is   empowered   to   constitute   a   New   Town <\/p>\n
    Development   Authority.       Sub-section   3(A)   of   the   Section   113 <\/p>\n
    reads thus:-\n<\/p>\n
                         “(3A)   Having   regard   to   the   complexity   and  <\/p>\n
                         magnitude   of   the   work   involved   in   developing  <\/p>\n
                         any   area   as   a   site   for   the   new   town,   the   time  <\/p>\n
                         required   for   setting   up   new   machinery   for  <\/p>\n
                         undertaking   and   completing   such   work   of  <\/p>\n
                         development,   and   the   comparative   speed   with  <\/p>\n
                         which   such   work   can   be   undertaken   and  <\/p>\n
                         completed   in   the   public   interest,   if   the   work   is  <\/p>\n
                         done   through   the   agency   of   a   corporation  <\/p>\n
                         including a company owned or controlled by the  <\/p>\n
                         State   or   a   subsidiary   company   thereof,   set   up  <\/p>\n
                         with the object of developing an area as a new  <\/p>\n
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\n     kbp                                         8                               wp1211-09.sxw<\/p>\n
                         town,   the   State   Government   may,  <\/p>\n
                         notwithstanding   anything   contained   in   sub-<\/p>\n
                         section (2), require the work of developing and  <\/p>\n
                         disposing of land in the area of a new town to be  <\/p>\n
                         done   by   any   such-corporation,   company   or  <\/p>\n
                         subsidiary company aforesaid, as an agent of the  <\/p>\n
                         State   Government;   and   thereupon,   such  <\/p>\n
                         corporation or company shall, in relation to such  <\/p>\n
                         area, be declared by the State Government, by  <\/p>\n
                         notification in the Official Gazette, to be the New  <\/p>\n
                         Town Development Authority for that area]”.\n<\/p><\/blockquote>\n
    It must be stated here that aforesaid sub-section 3(A) as well as <\/p>\n
    Section   113   A   were   brought   on   the   statute   book   by   way   of   an <\/p>\n
    amendment made by the Maharashtra Act No.21 of 1971.  Section <\/p>\n
    113(A) of the said Act read thus:-\n<\/p>\n
                         “113A.Notwithstanding anything contained in this  <\/p>\n
                         Act,   or   in   any   law   for   the   time   being   in   force,  <\/p>\n
                         where any corporation or company is declared to  <\/p>\n
                         be the New Town Development Authority under  <\/p>\n
                         sub-section   (3A)   of   section   113,   the   State  <\/p>\n
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\n     kbp                                      9                              wp1211-09.sxw<\/p>\n
                        Government shall acquire either by agreement or  <\/p>\n
                        under the Land Acquisition Act, 1894 (and such  <\/p>\n
                        acquisition   may   have   been   commenced   before  <\/p>\n
                        the   coming   into   force   of   this   section)   any   land  <\/p>\n
                        within the area designated under this Act, as the  <\/p>\n
                        site of the new town, any land adjacent to that  <\/p>\n
                        area   which   is   required   for   the   purposes  <\/p>\n
                        connected   with   the   development   of   the   new  <\/p>\n
                        town, and any land whether adjacent to that area  <\/p>\n
                        or   not,   which   is   required   for   provisions   of  <\/p>\n
                        services or amenities for the purposes of the new  <\/p>\n
                        town; and vest such land in such Authority for the  <\/p>\n
                        purposes of this Chapter]”\n<\/p><\/blockquote>\n
    In the light of the relevant provisions of the said Act of 1966 , the
\n                                                                                         th
\n    factual aspects of the case   will have to be   considered.   On 20<\/p>\n
    March, 1971, a notification was issued by the State Government <\/p>\n
    which was published in the gazette by which the area mentioned in <\/p>\n
    the   schedule   was   designated   as   the   site   for   the   proposed   new <\/p>\n
    town known as “New Bombay”.  The said notification was issued in <\/p>\n
    exercise of powers under sub-section (1) of Section 113 of the said <\/p>\n
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\n     kbp                                       10                              wp1211-09.sxw<\/p>\n
    Act of 1966.  On the same day, another notification was issued by <\/p>\n
    the State Government which was published in the same gazette.\n<\/p>\n
    The said notification was issued in exercise of powers conferred by <\/p>\n
    the sub-section 3A of the Section 113 of the said Act of 1966 by <\/p>\n
    which the CIDCO was appointed as the New Town Development <\/p>\n
    Authority for the area comprised in the site of New Bombay. The <\/p>\n
    said notification records that the CIDCO was a subsidiary company <\/p>\n
    of the State Government which was   owned and controlled by the <\/p>\n
    State Government.  Thus, the appointment of the CIDCO is under <\/p>\n
    sub-section   3A   of   Section   113,   and   therefore,   the   CIDCO   as   a <\/p>\n
    New Town Development Authority was required to do the work of <\/p>\n
    developing and disposing of land in the area of new town of New <\/p>\n
    Bombay as an agent of the State Government.\n<\/p>\n
    9]    At   this   juncture,   it   will   be   worth   making   a   reference   to   a <\/p>\n
                                th
\n    notification     dated 24   September, 1986 under section 4 of the <\/p>\n
    said Act of 1894 by which the land subject matter of the reference <\/p>\n
    in the present case has been notified for acquisition.    There is a <\/p>\n
    recital in the notification that under the provisions of Section 113A <\/p>\n
    of the said Act of 1966 read with Section 4 of said Act of 1894, the <\/p>\n
    land   described   in   the   schedule   under   the   said   notification   was <\/p>\n
    likely to be needed for the development of the area designated as <\/p>\n
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\n     kbp                                       11                             wp1211-09.sxw<\/p>\n
    the site of the New Town of New Bombay. The notification under <\/p>\n
                                                               th
\n    Section 6 of the said Act of 1894 issued on 10  September, 1987 <\/p>\n
    is also placed on record.   The notification specifically records the <\/p>\n
    satisfaction of the Commissioner of the Konkan Division that it was <\/p>\n
    necessary to acquire the land   described in the schedule to the <\/p>\n
    notification under section 4 referred to earlier .     The notification <\/p>\n
    states   that   the   same   was   issued   under   the   provisions   of   the <\/p>\n
    section 6 of the said Act of 1894 read with section 113-A of the <\/p>\n
    said Act of 1966. The material recital in the said notification  read <\/p>\n
    thus:-\n<\/p>\n
                         ”      And   whereas,   the   Commissioner   Konkan  <\/p>\n
                         Division, is now satisfied that the said lands are  <\/p>\n
                         needed to be acquired at the expenses of State  <\/p>\n
                         Government for the said public purpose;”\n<\/p>\n
    The   aforesaid   recital   makes   it   very   clear       that   the   land   was <\/p>\n
    decided to be acquired “at the expenses of the State Government”\n<\/p>\n
    for public purpose.   This factual aspect has some bearing on the <\/p>\n
    decision of this petition.\n<\/p>\n
    10]   The   learned   counsel   for   the   CIDCO   has   relied   upon   the <\/p>\n
    decision   of   the   State   Government   which   is   reflected   from   the <\/p>\n
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\n     kbp                                       12                            wp1211-09.sxw<\/p>\n
                        th
\n    circular dated 12  February, 2008 which is placed on record by the <\/p>\n
    learned counsel for the CIDCO.   In the preamble, it refers to the <\/p>\n
                                         th
\n    aforesaid notification dated 20  March, 1971.  It also notes that the <\/p>\n
    CIDCO has been appointed by the State Government as the New <\/p>\n
    Town   Development   Authority   for   New   Bombay.   The   said <\/p>\n
    government resolution notes that the CIDCO was newly formed in <\/p>\n
    the year 1971 and at the time funds were not available with the <\/p>\n
    CIDCO. It is further stated that as the funds were not available with <\/p>\n
    CIDCO,   it   was   decided   that   the   State   Government   will   acquire <\/p>\n
    privately   owned   lands   in   the   site   of   New   Bombay   and   will <\/p>\n
    thereafter transfer the same to the CIDCO. The said government <\/p>\n
    resolution further   notes that the State Government has acquired <\/p>\n
    various  lands under the provisions of the said Act of 1894 and has <\/p>\n
    transferred   the   same   to   the   CIDCO.   The   said   lands   are   being <\/p>\n
    developed and sold through the   CIDCO .It is further noted that <\/p>\n
    considering   the   present   financial   condition   of   the   State <\/p>\n
    Government     ,   hereafter   it   will   not   be   possible   for   the   State <\/p>\n
    Government   to   make   available   funds   for   payment   of <\/p>\n
    compensation\/enhanced compensation in respect of land acquired <\/p>\n
    for   the   project   of   the   New   Bombay.   The   said   government <\/p>\n
    resolution refers to earlier decision of the Government dated 2nd <\/p>\n
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\n     kbp                                       13                                wp1211-09.sxw<\/p>\n
    January 1985 by which the State Government  decided  to acquire <\/p>\n
    private   land   for     the     project   of   New   Bombay   and   thereafter   to <\/p>\n
    transfer the same to CIDCO.  It is further noted that the said earlier
\n                                                                           st
\n    decision has been modified and with effect from the 1  April 2008 , <\/p>\n
    the CIDCO will have to pay the compensation amount on account <\/p>\n
    of the acquisition of land for the New Bombay project and even the <\/p>\n
    enhanced compensation amount granted by the Court will have to <\/p>\n
    be paid by the  CIDCO .   It records that with effect from 1  April,
\n                                                                                    st<\/p>\n
    2008  the amount of compensation paid by the  CIDCO will be “on <\/p>\n
    account   of   the   Government”.     It   further   records   that   when   an <\/p>\n
    account   of   the   amounts   paid   by   the   State   Government   towards <\/p>\n
    compensation   and   enhanced   compensation   as   well   as   the <\/p>\n
    amounts       paid   by   the   CIDCO   in   that   behalf   will   be   made,   the <\/p>\n
    amounts   paid   by   the   CIDCO   will   be   taken   into   consideration.\n<\/p>\n
    Further   part   of   the   government   decision   records   that   for   the <\/p>\n
    acquisition of   the land for the purpose of New Bombay project , <\/p>\n
    the Town Development  Department of the State of Maharashtra is
\n                                                                      th
\n    the acquiring body.  However, by  a letter dated 20  March, 2006 <\/p>\n
    issued   by   the   State   Government   ,   the   Managing   Director,   Joint <\/p>\n
    Managing Director, Chief Land Survey Officer of the CIDCO have <\/p>\n
    been authorized to submit the proposals for acquisition on behalf <\/p>\n
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\n     kbp                                     14                             wp1211-09.sxw<\/p>\n
    of the Government. Therefore, the government resolution directs <\/p>\n
    that   the   CIDCO   should   actively   participate   in   the   Court <\/p>\n
    proceedings relating to the payment of compensation in respect of <\/p>\n
    the   land   acquired   for   the   New   Bombay   project.   Under   the   said <\/p>\n
    decision,   a   direction   was   issued   to   the   CIDCO   that   in   the <\/p>\n
    proceeding of a reference under section 18 of the said Act 1894 , <\/p>\n
    the CIDCO shall oppose the claim for enhancement by pointing out <\/p>\n
    that   apart   from   compensation   ,   allotment   of   developed   plots   is <\/p>\n
    being made to the affected persons.\n<\/p>\n
    11] From consideration of the aforesaid documents the following <\/p>\n
    factual position emerges:\n<\/p>\n
              a) For   setting   up   of   the   new   town   of   New   Bombay,   in <\/p>\n
                 exercise of powers under sub-section 3(A) of section
\n                                                                                        th
\n                 113 of the said Act of 1966 under notification dated 20<\/p>\n
                 March   1971,   the   CIDCO   was   appointed   as   the   New <\/p>\n
                 Town   Development   Authority.   Thus,   the   State <\/p>\n
                 Government decided to get the  work  of development <\/p>\n
                 of   the   site   of   the   city  of   New   Bombay   done   through <\/p>\n
                 CIDCO as an agent of the State Government. <\/p><\/blockquote>\n
              b)  The acquiring body for the acquisition of land for New <\/p>\n
                 Bombay   project   was   the   Town   Development <\/p>\n
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\n     kbp                                 15                             wp1211-09.sxw<\/p>\n
             Department  of   the   State  Government   and   with   effect <\/p>\n
                       th
\n             from  20   March, 2006 certain  Officers of the CIDCO <\/p>\n
             have been empowered to submit the proposals for the <\/p>\n
             acquisition of land on behalf of the State Government.\n<\/p>\n
          c) Till 1st April, 2008 not only that the CIDCO was not the <\/p>\n
             acquiring body, but, even the compensation on account <\/p>\n
             of acquisition of lands for the said project was paid by <\/p>\n
             the State Government and not by the CIDCO.\n<\/p>\n
                                                        th\n<\/p>\n
          d) The effect of the decision dated 12  February, 2008 is <\/p>\n
                            st
\n             that  from 1  April, 2008 the CIDCO will have to pay the <\/p>\n
             compensation   amount   “on   account   of   Government”.\n<\/p>\n
             However   , the Town Development department of the <\/p>\n
             State Government continues to be the acquiring body.\n<\/p>\n
          e) As   far   as   the   present   acquisition   is   concerned,   the <\/p>\n
             notification under section 6 of the said Act 1894 makes <\/p>\n
             it clear that the land was acquired under Section 113A <\/p>\n
             at   the   instance   of   the   State   Government   and   at   the <\/p>\n
             expenses of State Government.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span><\/p>\n
     kbp                                      16                             wp1211-09.sxw\n\n\n\n\n          12]    Where any company or Corporation is declared to be \n\n\n\n\n                                                                                       \n<\/pre>\n
          the   New   Town   Development   Authority   under   sub-   section <\/p>\n
          (3A)   of   section   113   the   said   At   Of   1966,   as   per   section <\/p>\n
          113A , the State Government is required to acquire, either by <\/p>\n
          an Agreement or under the said Act of 1894 , any land within <\/p>\n
          the area designated as the site of the new town. The section <\/p>\n
          113A     requires the State Government to vest the acquired <\/p>\n
          lands   in   such   New   Town   Development   Authority     for   the <\/p>\n
          purposes of the development of the New Town.  Thus, even <\/p>\n
          if   a New Town Development Authority is appointed under <\/p>\n
          sub-section (3A) of Section 113 , the acquisition of the lands <\/p>\n
          for the purpose of setting up the New Town the has to be by <\/p>\n
          the State Government. The reason is that under sub-section <\/p>\n
          (3A) of section 113 , the New Town Development Authority <\/p>\n
          acts as  an  agent of  the  State Government. In  the  present <\/p>\n
          case , the CIDCO has been admittedly appointed under sub-\n<\/p>\n
          section   (3A)   of   section   113   of   the   said   Act   of   1966.\n<\/p>\n
          Therefore, as reflected from the notifications under sections <\/p>\n
          4 and 6 of the said Act of 1894, the acquisition of the land is <\/p>\n
          under section 113A of the said Act of 1966 at the instance of <\/p>\n
          the state government. The notification under section 6 makes <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span>
\n     kbp                                       17                            wp1211-09.sxw<\/p>\n
              it very clear that the acquisition is at the cost of the State <\/p>\n
              Government. The acquisition has been made and completed <\/p>\n
              prior   to   first   April   2008   and   therefore,   going   by   the
\n                                                     th
\n              government   resolution   dated   12   of   February   2008,     the <\/p>\n
              compensation   and   enhanced   compensation   is   payable   by <\/p>\n
              the state government.\n<\/p>\n
    12A] A reliance has been placed by the learned counsel for the <\/p>\n
    CIDCO on the decision of the Constitution Bench of the Apex <\/p>\n
    Court in the case of U.P.Awas Evan Vikas Parishad Vs. Gyandevi <\/p>\n
    [1995(2)SCC 326].  The question before the Apex Court was re-\n<\/p>\n
    garding the interpretation of Section 50 of the Act of 1894.  The <\/p>\n
    conclusions of the decision of the Apex Court are summed up in <\/p>\n
    paragraph   24   of   the   decision.     The   relevant   conclusions   read <\/p>\n
    thus :-\n<\/p>\n
          “24. To sum up, our conclusions are :\n<\/p><\/blockquote>\n
              1. Section 50(2) of the L.A. Act confers on a local authority for
\n          whom land is being acquired a right to appear in the acquisition
\n          proceedings before the Collector and the reference court and ad-
\n          duce evidence for the purpose of determining the amount of com-
\n          pensation.\n<\/p><\/blockquote>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span><\/p>\n
     kbp                                      18                            wp1211-09.sxw<\/p>\n<\/blockquote>\n
             2. The said right carries with it the right to be given adequate no-\n<\/p><\/blockquote>\n
          tice by the Collector as well as the reference court before whom ac-\n<\/p><\/blockquote>\n
          quisition proceedings are pending on the date on which the matter of
\n          determination of compensation will be taken up.”\n<\/p><\/blockquote>\n
                                                  (emphasis added)<\/p>\n
    There are subsequent decisions of the Apex Court which consider <\/p>\n
    the said decision in the case of U.P. Awas (Supra).  In the case of <\/p>\n
    Agra Development Authority Vs. Special Land Acquisition Officer <\/p>\n
    and   others   [(2001)2   SCC   646]  the   Apex   Court   considered   the <\/p>\n
    same question.  In paragraph 7, the Apex Court held thus:-\n<\/p><\/blockquote>\n
                      “. …….What is required by Section 50 of the Land Ac-\n<\/p><\/blockquote>\n
                   quisition Act is that the body for whom the property is
\n                   being acquired is given an opportunity to appear and ad-\n<\/p><\/blockquote>\n
                   duce evidence for the purposes of determining the
\n                   amount of compensation. Nothing could be shown to us that
\n                   this had been done. On this point the matter requires to be
\n                   sent back to the Special Land Acquisition Officer for refixing<\/p>\n
                   compensation payable. “<\/p><\/blockquote>\n
\n\n\n                                                             (emphasis added)\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 15:16:41 :::<\/span>\n     kbp                                     19                            wp1211-09.sxw\n\n\n\n\n    13]     Learned counsel for the second respondent CIDCO invited \n\n\n\n\n                                                                                     \n<\/pre>\n
    my attention to the decision of the Apex Court in the case of NTPC <\/p>\n
    Ltd.   Vs.   State   of   Bihar   and   others   [(2004)12   SCC   96].     In <\/p>\n
    paragraph 6 of the judgment, the Apex Court reiterated that the <\/p>\n
    body on whose behalf the land has been acquired is not just a <\/p>\n
    necessary   party,   but,   is   the   proper   party   before   the   reference <\/p>\n
    court.   In the decision relied upon by the learned counsel for the <\/p>\n
    CIDCO   in   the   case  Regional   Medical   Research   Centre,   Tribal <\/p>\n
    Vs.Gokaran and others [(2004) (13)SCC 125],  The Apex Court <\/p>\n
    reiterated the settled law on the point. The Apex Court observed <\/p>\n
    that <\/p>\n
            “The definitions of “local authority” and “company” in the Land<\/p>\n
            Acquisition Act are inclusive definitions. They include all bodies
\n            on whose behalf land is acquired.”\n<\/p><\/blockquote>\n
    Therefore, to that extent the learned counsel for CIDCO is right <\/p>\n
    when   he   made   a   submission   that     the   aforesaid   definitions   are <\/p>\n
    sufficiently wide to include all bodies on whose behalf the land is <\/p>\n
    required.\n<\/p><\/blockquote>\n
    14]     Thus, in short, the Apex Court has laid down that the body <\/p>\n
    on whose behalf the land was acquired is either a necessary or a <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span>
\n     kbp                                        20                             wp1211-09.sxw<\/p>\n
    proper party to the reference under section 18 of the said Act of <\/p>\n
    1884.     On   facts,   as   already   held   earlier,   the   acquisition   in   the <\/p>\n
    present case is in exercise of the powers under Section 113A by <\/p>\n
    the State Government.  The notification under Section 6 of the Act <\/p>\n
    of 1984 makes it very clear that the acquisition is on behalf of the <\/p>\n
    State Government at the cost of the State Government.  Moreover, <\/p>\n
                                               th
\n    in view of the notification dated 24  March, 1971 the CIDCO being <\/p>\n
    the New Town Development Authority appointed under Section 3A <\/p>\n
    of Section 113 is doing the work of developing and disposing of the <\/p>\n
    land in the area as an agent of the State Government.  Therefore, <\/p>\n
    the acquisition cannot be said to be at the instance of the CIDCO.\n<\/p>\n
                                                                th
\n    As   stated   in   government   resolution   dated   12   April   2008   ,   the <\/p>\n
    acquiring body is admittedly the town development  department of <\/p>\n
    the State Government. After the acquisition, the acquired land may <\/p>\n
    have   been   transferred   to   CIDCO.   But   as   stated   earlier   ,   the <\/p>\n
    appointment of the CIDCO being under sub-section (3A) of section <\/p>\n
    113 of the said Act of 1966, the CIDCO acts as an agent of the <\/p>\n
    State Government. The work of development of the site of the New <\/p>\n
    Bombay is being carried out by the CIDCO on behalf of the State <\/p>\n
    Government.   Therefore,   the   acquisition   of   land   in   exercise   of <\/p>\n
    powers under section 113A of the said Act of 1966 cannot be said <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span>
\n     kbp                                       21                            wp1211-09.sxw<\/p>\n
    to   have   been   made   for   the   benefit   of   or   on   behalf   of   CIDCO.\n<\/p>\n
    Therefore, none of the aforesaid decisions will apply in the present <\/p>\n
                              st
\n    case.   At   least,   till   1   April,   2008,   the   compensation   amount   in <\/p>\n
    respect of the land acquired for the project of New Bombay was <\/p>\n
    being paid by the State Government and  now the decision of the <\/p>\n
    State Government says that the CIDCO will pay the compensation <\/p>\n
    amount “on account of the State Government”.   Even assuming <\/p>\n
    that the Government decision of April, 2008 brings about certain <\/p>\n
    change   ,   the   said   decision   is   of   no   relevance   here   as   the <\/p>\n
    acquisition has been initiated and an award has been made much <\/p>\n
    prior to the said decision. Even assuming that the acquisition is <\/p>\n
    governed by the government resolution dated 12th April 2008, the <\/p>\n
    enhanced compensation will be payable by the CIDCO on account <\/p>\n
    of   the   State   Government.   In   the   circumstances,   the   CIDCO   is <\/p>\n
    neither the acquiring body nor the authority which is liable to pay <\/p>\n
    compensation.\n<\/p>\n
    14A] Now an argument made by the learned counsel for the third <\/p>\n
    respondent   that  the CIDCO is a “person interested” will have to <\/p>\n
    be considered.     The said argument was advanced as under the <\/p>\n
    clause “b” of section 20 of the said Act of 1894 a person interested <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span>
\n     kbp                                     22                              wp1211-09.sxw<\/p>\n
    is required to be issued  a notice of the reference.             Section   20   of <\/p>\n
    the said Act of 1894 read thus:-\n<\/p>\n
                        “20.Service   of   Notice.-  The   Court   shall  <\/p>\n
                        thereupon cause a notice specifying the day on  <\/p>\n
                        which the Court will proceed to determining the  <\/p>\n
                        objection, and directing their appearance before  <\/p>\n
                        the   Court   on   that   day,   to   be   served   on   the  <\/p>\n
                        following persons, namely:-\n<\/p><\/blockquote>\n
                                  (a)the applicant;\n<\/p><\/blockquote>\n
                                  (b)all   persons   interested   in   the  <\/p>\n
                                      objection,   except   such   (if   any)   of  <\/p>\n
                                      them   as   have   consented   without  <\/p>\n
                                      protest   to   receive   payment   of   the  <\/p>\n
                                      compensation awarded; and<\/p>\n<\/blockquote>\n
                                  (c) in   the   objection   is   in   regard   to   the  <\/p>\n
                                      area of the land or to the amount of  <\/p>\n
                                      compensation, the Collector.”\n<\/p><\/blockquote>\n
    Clause “b” contemplates a notice to all persons interested in the <\/p>\n
    objection.   In   a   reference   under   section   18,   the   objections <\/p>\n
    contemplated   are   as   regards   (a)   the   measurement   of   the   land <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span>
\n     kbp                                       23                               wp1211-09.sxw<\/p>\n
    acquired ,(b) the amount of compensation,(c) the persons to whom <\/p>\n
    it is payable, or (d) the apportionment of the compensation among <\/p>\n
    the persons interested. In the facts of the case, the CIDCO   is not <\/p>\n
    concerned with any of the four categories of objections which can <\/p>\n
    be   raised   in   a   reference   under   section   18.   The   CIDCO   is   not <\/p>\n
    interested   even   in   the   amount   of   compensation   as   the   same   is <\/p>\n
    payable by   the State Government.   A reference will have to be <\/p>\n
    made  to clause “b” of  section 3  of  the  said Act  of 1894   which <\/p>\n
    reads thus:-\n<\/p><\/blockquote>\n
                         “(b) the expression “person interested” includes  <\/p>\n
                         all persons claiming an interest in compensation  <\/p>\n
                         to be made on account of the acquisition of land  <\/p>\n
                         under this Act: and a person shall be deemed to  <\/p>\n
                         be   interested   in   land   if   he   is   interested   in   an  <\/p>\n
                         easement affecting the land;”\n<\/p><\/blockquote>\n<\/blockquote>\n
     A person can be said to be a person interested provided that he is <\/p>\n
    the person claiming an interest in the compensation to be made on <\/p>\n
    account   of       acquisition   .     Thus,   the   person   who   claims   to   be <\/p>\n
    entitled to compensation or a share in the compensation can only <\/p>\n
    be   a   person   who   can   be   said   to   be   claiming   interest   in   the <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span>
\n     kbp                                       24                               wp1211-09.sxw<\/p>\n
    compensation.     Here   the   CIDCO   is   not   claiming   interest   in   the <\/p>\n
    compensation.   In   fact,   the   CIDCO   has   no   concern   with   the <\/p>\n
    payment of compensation.       Therefore, the CIDCO cannot claim <\/p>\n
    right of audience on the ground that it is a “person interested”.\n<\/p><\/blockquote>\n
    15]  Only  possible  provision  under  which  the  CIDCO  could  have <\/p>\n
    claimed is Section 50 of the said Act of 1894 which  reads thus:-\n<\/p>\n
                        “50.Acquisition   of   land   at   cost   of   a   local  <\/p>\n
                        authority or Company- (1)Where the provisions  <\/p>\n
                        of   this   Act   are   put   in   force   for   the   purpose   of  <\/p>\n
                        acquiring land at the cost of any fund controlled  <\/p>\n
                        or   managed   by   a   local   authority   or   of   any  <\/p>\n
                        Company, the charges of any incidental to such  <\/p>\n
                        acquisition   shall   be   defrayed   from   or   by   such  <\/p>\n
                        fund or Company.\n<\/p><\/blockquote>\n
                            (2)In any proceeding held before a Collector  <\/p>\n
                               or Court in such cases the local authority or  <\/p>\n
                               Company   concerned   may   appear   and  <\/p>\n
                               adduce   evidence   for   the   purpose   of  <\/p>\n
                               determining the amount of compensation:\n<\/p><\/blockquote>\n
                                                                  ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span><\/p>\n
     kbp                                      25                            wp1211-09.sxw<\/p>\n
                                Provided   that   no   such   local   authority   or  <\/p>\n
                                Company   shall   be   entitled   to   demand   a  <\/p>\n
                                reference under section 18.\n<\/p><\/blockquote>\n
    In the present case, admittedly, land is not being acquired at the <\/p>\n
    cost of any fund controlled     or managed by the CIDCO. As held <\/p>\n
    earlier, the acquisition cannot be said to be on behalf of CIDCO or <\/p>\n
    for   benefit of CIDCO in as much as while developing the site of <\/p>\n
    New   Bombay,   the   CIDCO   is   acting   as   an   agent   of   the   State <\/p>\n
    Government.  Therefore, sub-section (2) of Section 50 will have no <\/p>\n
    application in the present case.\n<\/p>\n
    15A] Keeping   in   mind   the   aforesaid   legal   and   factual   position   , <\/p>\n
    now  a reference will have to be made to the impugned order.  The <\/p>\n
    only ground on which the   CIDCO is ordered to be impleaded is <\/p>\n
    that the CIDCO is a local authority, and therefore, it is a proper <\/p>\n
    party to the reference.   The local authority can become necessary <\/p>\n
    or proper   party provided sub-section 1 of Section 50 is applicable <\/p>\n
    which  is not the case here.   In the circumstances, the impugned <\/p>\n
    order   will   have   to   be   quashed   and   set   aside   being   completely <\/p>\n
    illegal.  Therefore, the petition must succeed.\n<\/p>\n
    16]  Hence, I pass the following order:-\n<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span><\/p>\n
     kbp                            26                              wp1211-09.sxw\n\n\n\n\n                                                     th\n<\/pre>\n
           a) The impugned order dated 29  September, 2008 <\/p>\n
             is   quashed   and   set   aside   and   the   application <\/p>\n
             exhibit   113   in   LAR   No.620\/2000       stands <\/p>\n
             dismissed.\n<\/p>\n
           b) The petition is allowed accordingly.\n<\/p>\n
           c) No order as to the costs.\n<\/p>\n
           d) On the prayer made by the learned counsel for <\/p>\n
             the       third       respondent,   it   is   directed   that   the <\/p>\n
             reference   court   shall   not   proceed   with   the <\/p>\n
             hearing of the reference till the end of January , <\/p>\n
             2010.\n<\/p>\n
                                            [ A.S. OKA, J.]<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:16:41 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Percival Joseph Pareira vs The Special Land Acquisition … on 7 November, 2009 Bench: A.S. Oka kbp 1 wp1211-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1211 OF 2009 Percival Joseph Pareira ..Petitioner Vs. 1 The Special Land Acquisition Officer 2 The State of Maharashtra 3 […]<\/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-58646","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nPercival Joseph Pareira vs The Special Land Acquisition ... on 7 November, 2009 - 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\/percival-joseph-pareira-vs-the-special-land-acquisition-on-7-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Percival Joseph Pareira vs The Special Land Acquisition ... on 7 November, 2009 - 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