Raghunath Bajirao Borkar and others vs State of Maharashtra and others

V.A. Mohta, J.—This petition arises out of proceedings for acquisition of land under the Land Acquisition Act (the LA Act) for a public purpose - construction of Ukali-Bori Road. Notification u/s 4 of the LA Act specifying certain areas in certain fields was issued on 22nd June 1982. Notification u/s 6 was issued on 15th March, 1983. Notification u/s 4 was challenged in Writ Petition No. 947 of 1983 before this Court on the grounds of mala fides and notification u/s 6 on the. ground of absence of hearing on objections. On 23rd August, 1983, the learned Government Pleader made a statement about withdrawal of notification u/s 6. On the basis of that statement, the petition was withdrawn. Following is the gist of the order :

Shri Sambre, Government leader, states that the notification u/s 6 is being withdrawn. On this statement being made, Mr. Munshi seeks permission to withdraw the Writ Petition. Permitted to withdraw. Disposed of as such. No costs.

After withdrawal of Notification u/s 6, fresh hearing was granted and second Notification u/s 6 came to be issued on 4th April, 1985.

At, this stage, we may notice certain developments which took place between the date of withdrawal of the Writ Petition and issuance of second notification u/s 6. For the very same public purpose, fresh Notification u/s 4 was issued on 1st April 1984 for acquisition of additional lands. The areas in the two Notifications do not overlap though some fields are common in both. No Notification u/s 6 in respect of the said properties is yet issued. It appears further that process of hearing on objections in this matter is even not complete.

Shri Dandige, the learned counsel for the petitioners, contended that no notice u/s 9 for the Property covered by Notification u/s 4 dated 1st April 1984 could be issued nor can possession be taken unless Notification u/s 6 is issued in accordance with law. The contention is clearly correct. Shri Sambre, the learned Government Pleader, has fairly not disputed this position and states that if any such notices are, in fact, issued, they would be withdrawn and no possession would be taken unless valid Notification u/s 6 is issued. This controversy thus has only academic importance.

We now revert to the challenge to the first acquisition. It is contended that the first Notification u/s 4 is vitiated due to mala fides and non-application of mind. Allegations of personal malice are too general and are not substantiated. We are not satisfied that there is absence of application of mind. The village map is shown to us from which it appears that there is already in existence a 10 feet width road from point B near Gaothan Bori village upto point A near Gaothan Ukhali, which adjoins a pucca road going from Mehkar to Sonari. It is in depth and its width cannot be extended unless soil on both sides is excavated extensively at heavy costs. The proposed new road is from point B to point C adjoining that very pucca road going towards Sonari. It is 40 feet in width, shorter in distance and is needed to meet the new requirement due to vehicular truck traffic for carrying sugarcane grown in the village to the new sugar factory situated on pucca road. Having regard to all this background, it does not appeal to us that there is no necessity to having another road for the villagers.

We now turn to the question of law of some importance raised in this petition viz. that necessary result of withdrawal of Notification u/s 6 is that the Government has withdrawn from the acquisition proceedings and hence notification u/s 4 also stands automatically withdrawn with the result no second Notification u/s 6 can be issued without fresh Notification u/s 4. Our attention was invited to the case of State of Madhya Pradesh and Others Vs. Vishnu Prasad Sharma and Others, in support of the proposition. The background of the said decision is that for erection of an iron and steel plant, Notification u/s 4 was issued for several lands in a village. The Government thereafter issued several successive notifications u/s 6 in respect of the part of the Property covered u/s 4 Notification and question arose whether instead of one Notification, such successive Notifications were permissible u/s 6 as it then stood. It is observed (Para 16):

''There is nothing in Sections 4, 5A and 6 to suggest that Section 4(1) is a kind of reservoir from which the government may from time to time draw out land and make declarations with respect to it successively. If that was the intention behind sections 4, 5A and 6 we would have found some indication of it in the -language used therein. But as we read these three sections together we can only find that the scheme is that Section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government what particular land out of that locality it needs. This is followed by a declaration u/s 6 specifying the particular land needed and that in our opinion completes the process and the notification u/s 4(1) cannot be further used thereafter. At the stage of Section 4 the land is not particularised but only the locality is mentioned: at the stage of Section 6 the land in the locality is particularised and thereafter it seems to us that the notification u/s 4(1) having served its purpose exhausts itself. The sequence of events from a notification to the intention of acquire | Section 4(1)] to the declaration u/s 6 unmistakably leads one to the reasonable conclusion that when once a declaration u/s 6 particularising the area out of the area in the locality specified in the Notification u/s 4(1) is issued the remaining non-particularised area stands automatically released. In effect the scheme of these three sections is that there should be first a Notification u/s 4(1) followed by one Notification u/s 6 after the Government has made up its mind which Land out of the locality it requires.

The other decision to which our attention was drawn is the case of Ajitsingh Vs. The State of Maharashtra and Others, . In that case no individual notice of notification u/s 4 was issued, the land owner learnt about acquisition proceedings only when notice u/s 9 was received as a result he could not raise objection as contemplated u/s 5A. This Court not only quashed Notification u/s 6 for want of notice but on the basis of Vishnu Prasad Sharma quashed even Notification u/s 4. holding (Page 182):

These observations have been made by Supreme Court in a case which concerns issuance of successive Notifications from time to time u/s 6 based upon the same Notification u/s 4. The judgment is, therefore, of necessity concerning such a state of facts. In the case before us, only one Notification u/s 6 was issued based upon the Notification u/s 4. We have held the Notification u/s 6 to be invalid but the above observations made by the Supreme Court in respect of successive Notifications u/s 6 do, in our opinion, apply with equal force to the facts as existing in the case before us because the reasoning and the ratio appearing in this judgment of the Supreme Court can apply to the facts before us. Even an invalid Notification u/s 6 would exhaust the efficacy of the Notification u/s 4 on which it is based. We, therefore, uphold the Petitioner''s contention and hold and declare that as the Notification u/s 6 had in fact been issued, though it has been held by us to be invalid, the efficacy of the Notification u/s 4 has been exhausted and no second or further Notification can be issued on the basis of the said Notification u/s 4. We, however, want to make one thing clear. The Notification u/s 6 relates to lands other than the land of the petitioner with which this petition is concerned. Our judgment and declaration is confined only to the land of the petitioner and our judgment and declaration in no way relates to or concerns the other lands mentioned in the said Notification u/s 4.

True it is, Ajitsingh does support the case of the petitioner. It is a Division Bench decision and is normally binding on us. But it appears to us - and we say this with great respect - that the said decision is rendered per incurium. Neither the changes brought about in Section 6 by Act 13 of 1967 nor the case of Girdharilal (sic)

Under the circumstances, petition allowed partly and Rule made absolute to the extent of no land covered by second Section 4 Notification can be acquired unless due procedure contemplated under the LA Act is followed The respondents are restrained from interfering with the possession of those lands unless and until Notification u/s 6 is issued after following the due procedure. Challenge to the acquisition of land covered by first Notification u/s 4, however, fails on merits as well as on point of law. Rule accordingly. No order as to costs.