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TMI Blog2013 (7) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 670 of 1996 and upheld a notification dated 13th November, 1987 issued under Section 126(2) of the MRTP Act read with Section 6 of the Land Acquisition Act and published in the Official Gazette on 3rd December, 1987. The High Court has by the same judgment and order quashed order dated 20th May, 1998 issued under Section 40 of the Land Regulation Act directing withdrawal of the acquisition proceedings, and allowed Writ Petitions No. 3620 and 3874 of 1998. Facts leading to the filing of the writ petitions and the present appeals may be summarised as under: 2 . Pune Municipal Corporation which is also the Planning Authority under the MRTP Act published a notification on 13th May, 1976 declaring its intention to revise the development plan for the Pune city and inviting suggestions and objections to the proposed revision. The Draft Revised Development Plan inter alia covered site No. M- 145 comprising Survey No. 559/2B admeasuring 1 hectare 20 acres (approximately) which was under the orders of Director, Town Planning shown as reserved for the extension of the APMC market yard. The Draft Development Plan published in the Official Gazette on 7th October, 1982 in terms of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, went ahead with the acquisition proceedings and made an award on 9 th November, 1989, pursuant whereto the Respondent-APMC deposited a sum of ₹ 26,29,872/- towards the cost of acquisition on 16th October, 1990. The request of the Appellants for deletion of the land from acquisition proceedings was finally rejected by the Government on 5th November, 1990 thereby clearing the decks for completing the acquisition proceedings. 5 . The Land Acquisition Officer accordingly issued a notice under Section 12(2) of the Land Acquisition Act for taking over the possession of the land which was received by the land owners on 24th November, 1990. The possession was scheduled to be taken over on 26th November, 1990 at which stage the land owners filed Regular Civil Suit No. 2194 of 1990 before the Civil Judge, Senior Division, Pune against the State of Maharashtra and the Land Acquisition Officer challenging the award made by the Collector. In the suit the Civil Judge, Pune passed an interlocutory order directing the parties to maintain status quo which order was challenged by the Defendants before the High Court in a Civil Revision that was allowed with a direction to the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rket only. In particular, High Court referred to Para 3 of the writ petition in which the Petitioners had themselves stated as under: the Petitioner's thus state that the additional land was sought for by the Respondent No. 3 to extend the market yard to enable them to accommodate the activities of bamboo trade which was incorporated in entries 5 and 6 under the heading No. XV forest products in the Schedule to the said Act. 9. The High Court repelled the contention that the provisions of Section 37 of the Act were applicable to the case at hand and distinguished the decisions that were relied upon by the writ Petitioners-Appellants in support of that contention and dismissed Writ Petition No. 670 of 1996. 10. In Writ Petitions No. 3620 of 1998 and 3874 of 1998 the High Court found that the withdrawal of the acquisition proceedings was not valid not only because the withdrawal notification was not published in the Official Gazette but also because the APMC-the beneficiary of the acquisition proceedings had not been given an opportunity of being heard by the Minister concerned before directing withdrawal of the said proceedings. The High Court went a step further and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for substitution of the legal representatives was moved by the Appellant-Mutha Associates or the legal heirs of the deceased Appellants. Interlocutory Application No. 6 filed after considerable delay, however, seeks condonation of delay, setting aside of abatement and for substitution of the legal heirs in place of the deceased Appellants. This application has been stoutly opposed by the Respondents who have filed objections asserting inter alia that the application does not, explain the inordinate delay nor does it show that the applicants or even Mutha Associates acted diligently in the matter. The opposition is not without basis. We say so because Appellant No. 2-Pralhad Lokhram Dodeja died on 3rd December, 2006, while Appellant No. 3-Bansidhar Lokram Dodeja passed away much earlier on 22.11.2003. Interlocutory Application No. 6 seeking condonation, setting aside of abatement and substitution was, however, filed only on 14th October, 2011 which implied that there is a delay of nearly five years in the filing of the application qua Appellant No. 2 and nearly eight years qua Appellant No. 3. Keeping in view the limitation prescribed for making such an application, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their favour from persons who never came forward to challenge the acquisition proceedings at any stage and who remained content and in complete oblivion makes little difference. Any such acquisition pendente lite and after the land stood vested in the APMC needs to be noticed only to be ignored. The alleged acquisition on the contrary casts a cloud over the bonafides of Mutha Associates who came to the Court for relief on the basis of a power of attorney executed in its favour by the owners and a development agreement that did not by itself clothe it with the locus standi to assail the acquisition independent of the owners but now seeks to improve its case by setting up an acquisition post the preliminary notification. Suffice it to say that Interlocutory Application No. 6 deserve to be and is hereby dismissed as without merit and Appeals No. 2853/2002, 2854/2002, 2855/2002 and 2856- 2857/2002 filed by the Appellant owners and Mutha Associates in its capacity as an attorney/agent as having abated. 15. Having said that we do not intend to neglect the contentions that were urged on merits at considerable length by Learned Counsel for the parties. The challenge to the acquisition p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That suit remained pending for nearly six years before the same was withdrawn to challenge the acquisition proceedings in Writ Petition No. 670 of 1996 filed before the High Court. This challenge was on the face of it barred by inordinate delay and laches. The High Court was fully justified in declining to interfere with the acquisition proceedings on that ground. The High Court while doing so, rightly observed: That apart, the gross delay and laches are most fatal to this petition. The planning process started in the year 1976. The draft development plan dated 18.9.1982 was published on 7th October, 1982 under which this particular parcel of land was reserved in favour of one APMC for extension of market yard. It was permissible to the Petitioners to lodge their objections under Section 28 of the MRTP Act. Subsequently the plan was sanctioned and published in the official gazette on 29.1.1987 though with one change that the designated purpose was to be bamboo trade and flea market Thereafter when the process of acquisition started, the declaration under Section 126(2) of the MRTP Act read with Section 6 of the Land Acquisition Act was made on 13th of November 1987. Not only tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilized land and therefore it did not need the land could certainly have been made when revised draft development plan was published in the official gazette on 7.10.1982. It is at that stage that the Petitioners were expected to lodge their objections to the reservation. After the plan was sanctioned and became final the acquisition proceedings were initiated. The declaration under Section 126(2) of the MRTP Act read with Section 6 of the Acquisition Act was made on 13.1.1987. Thereafter specific notices under Section 9 of the Acquisition Act were given to the land owners as well as to the developers. They participates in the proceedings by filing applications for adjournment and yet no objections were lodged before the Acquisition Officer. Thus the Acquisition Officer was left with no alternative but to finalise the proceedings which he did by passing the Award of 9.11.1989. The representation made to the State Government was rejected in November 1990 but that was also not challenged. In the suit filed on 25.11.1990 no challenge was raised to the notice under Section 126(2) read with Section 6. That was raised for the first time in the present writ petition filed in January 1996. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no different in the instant case. The Appellant owners or Mutha Associates Builders did not file any objections or move their little finger till the making of the award by the Collector. Instead of filing of the objections, opposing the proposed acquisition before the Collector and seeking redress at the appropriate stage they remained content with making representations to the minister which was not a remedy recognised by the statute. It was only after the Collector had made his award and after notice for taking over possession was issued by the Appellants that they rushed to the civil court with a suit in which too they did not assail the validity of the declaration under Section 26(2) of the MRTP Act read with Section 6 of the Land Acquisition Act. The remedy by way of a suit was clearly misconceived as indeed this Court declared it to be so in State of Bihar v. Dhirendra Kumar and Ors. (1995) 4 SCC 229. The Appellants could and ought to have challenged the acquisition proceedings without any loss of time. Having failed to do so, they were not entitled to claim any relief in the extraordinary jurisdiction exercised by the High Court under Article 226 of the Constitution. 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow the purpose indicated in the declaration was in any way different from the purpose for which the area was reserved. The High Court has, in our opinion, correctly held that both the purposes were public purposes and that APMC had repeatedly asserted that the acquisition will eventually lead to the use of the acquired area for the purpose for which the same was reserved namely, bamboo trade and flea market. The fact that the bamboo trade was on the date of the declaration not legally open for regulatory control of the APMC would not make any material difference having regard to the fact that flea market was at any rate permissible at all points of time for there was no legal or other impediment in the APMC regulating a flea market in its market yard. The restrictions on the bamboo trade were also removed on account of vacation of stay granted by the Government. The result was that as on the date of the judgment delivered by the High Court, the APMC was and continues to be free to regulate bamboo trade also. Suffice it to say that the High Court has correctly analysed the issue and rightly held that there is no dichotomy between the purpose notified and the purpose for which the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of M/s. Larsen and Tourbo Ltd. (supra), a specific submission was made on behalf of the State that Section 48 of the Land Acquisition Act did not provide for publication of a notification regarding the withdrawal of the acquisition proceedings unlike Sections 4 and 6 of the Act which require such a publication. This Court, however, repelled the contention and observed; We do not think that Mr. Salve is quite right in his submissions. When Sections 4 and 6 notifications are issued, much has been done towards the acquisition process and that process cannot be reversed merely by rescinding those notifications. Rather it is Section 48 under which, after withdrawal from acquisition is made, compensation due for any damage suffered by owner during the course of acquisition proceedings is determined and given to him. It is, therefore, implicit that withdrawal from acquisition has to be notified. Principles of law are, therefore, well settled. A notification in the official Gazette is required to be issued if the State Government decides to withdraw from the acquisition under Section 48 of the Act of any land of which possession has not been taken. 26. The High Court was also ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneficiary was limited to acquisitions for companies under Part VII of the Act and repelled the same in following words: The decision in Larsen and Toubro 1998 AIR SCW 1351 : AIR 1998 SC 1608 which relied upon an earlier decision in Amarnath Ashram Trust Society v. Governor of U.P. 1998 AIR SCW 59 : AIR 1998 SC 477 (supra) to hold that a beneficiary has a right to be heard before a notification under Section 48(1) is issued, does not appear to be limited to acquisition for companies under Part VII of the Act as is contended by the Respondents although the acquisition in that case had been made for a company for the purpose of setting up a housing colony. Both cases have also drawn a distinction between the rights of an owner and the beneficiary of the acquisition to object to withdrawal from the acquisition for the reasons noted earlier. 30. Was a proper hearing given to the APMC-the beneficiary in the instant case, is the other aspect that needs to be considered at this stage. The High Court has examined that aspect and concluded that the hearing was no more than an eye wash. The High Court observed: From the narration as above, it is very dear that the APMC was called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited two distinct reasons for directing withdrawal of the order. One of the reasons was that the APMC was not authorised to deal in bamboo and fire wood from 1977 till 1995 and that even though notification dated 6th February, 1995 included bamboo and fire wood in the coverage of the APMC, the implementation of the said order had been stayed by the State Government on 20th June, 1995. The Land Acquisition Officer could not have in the light of the said stay acquired the land for a purpose which the beneficiary could not ostensibly pursue. 33 . The High Court found that the stay granted by the State Government stood vacated on 18th February, 1997 and a specific mention of this fact was made in para 6 of the representation of the APMC filed before the Minister. Not only that a copy of the notification vacating the stay against bamboo trade was enclosed as item No. 9 of the supporting document and enclosed with the representation and was on the file of the minister. Even the developer on whose representation the withdrawal was ordered had in the written argument submitted before the Minister conceded that the stay granted by the State Government had been vacated. Ignoring these fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passionate manner while directing the withdrawal of the acquisition proceedings on the twin grounds that have been scrutinised by the High Court and rightly found to be untenable. We are satisfied that the order passed by the Minister directing withdrawal of the acquisition proceedings was bad not only because it was arbitrary, lacked objectivity and ignored the material on record but also because the said order was passed without offering to the APMC a fair and reasonable opportunity of being heard in the matter. That the order was not notified was only an additional reason that rendered the order legally unsupportable which the High Court rightly quashed. 37. That leaves us with only other question argued by Mr. V.A. Bobde at considerable length in Civil Appeals No. 2856 and 2857 of 2002 filed by Mr. Narayan Rane, the then Revenue Minister. The High Court has, as noticed earlier, held the action of the Minister to be actuated by malafides. Inasmuch as the Minister, passed an order without affording a fair hearing to APMC the beneficiary of the acquisition and on grounds that were untenable, the Minister did so under the influence of the Mutha Associates, the builder observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific charge, material or particulars to support the same. The mere fact that an order passed by a constitutional or statutory authority was found to be legally unsustainable did not ipso facto mean that the order was malafide in that the authority had passed the same for any extraneous or other consideration. Reliance in support was placed by Mr. Bobde upon a series of decisions of this Court, in which the need for the Court examining a charge of malafides to be circumspect and the standard of proof required for holding the charge proved have been laid down. The case at hand did not argue Mr. Bobde, satisfy the said requirements and standards, rendering the order passed by the High Court unsustainable. 39. The law regarding pleading and proof of 'malice in fact' or malafides as it is in common parlance described is indeed settled by a long line of decisions of this Court. The decisions broadly recognise the requirement of allegations suggesting malice in fact to be specific and supported by necessary particulars. Vague and general averments to the effect that the action under review was taken malafide would not therefore suffice. Equally well settled is the principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand. 41. That the allegations of malafides would require a high degree of proof to rebut the presumption that administrative action has been taken bonafide was laid down as one of the principles governing burden of proof of allegations of malafides levelled by an aggrieved party. The Court in that decision observed thus: .... It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is very heavy , (vide E.P. Royappa v. State of T.N. (1974) 4 SCC 3). There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. Stated in Gulam Mustafa v. State of Maharashtra (1976) 1 SCC 800 (SCC p. 802, para 2): It (mala fide) is the last refuge of a losing litigant. 42. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are made against the holder of an office which has high responsibility in the administration. The following passage from the decision is apposite: 92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the Petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic authority passing the order has committed mistakes or irregularities in procedures or even breached the minimal requirements of the principles of natural justice. The High Court has attributed to the Minister Appellant in Civil Appeals No. 2856-2857 of 2002, malafides simply because the order passed by him was found to be untenable in law. Such an inference was not in our view justified, no matter the circumstances enumerated by the High Court may have given rise to a strong suspicion that the minister acted out of extraneous considerations. Suspicion, however, strong cannot be proof of the charge of mafafide. It is only on clear proof of high degree that the court could strike down an action on the ground of malafide which standard of proof was not, in our opinion, satisfied in the instant case. To the extent the High Court held the action of the minister to be malafide, the impugned order would require correction and Civil Appeals No. 2856 and 2857 of 2002 allowed. 47. In the result we dismiss Civil Appeals No. 2853/2002, 2854/2002 and 2855/2002 with cost assessed at ₹ 5,00,000/- to be paid by Appellant No. 1-Mutha Associates to the beneficiary of the acquisition-AP ..... X X X X Extracts X X X X X X X X Extracts X X X X
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