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TMI Blog1992 (4) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... limits of the villages mentioned, excluding the lands occupied by Gaothan sites, lands already notified for acquisition, lands occupied by religious buildings, burial grounds etc. and lands belonging to the Central and State Governments and other statutory corporations are excluded from proposed acquisition. The schedule further recites that the lands within the original municipal limits of Panvel Municipality are excluded, but not the lands which are included in the extended municipal limits and which admeasures about 814 Hectares and 88.63 Ares. On March 20, 1971, the Government of Maharashtra on being satisfied that it is expedient in the public interest that the area adjoining city of Bombay should be developed as a site for the new town, published notification designating the area as the site for the proposed new town. The notification includes the area covered by the 86 villages. By a subsequent notification dated August 16, 1973 nine more villages situated within Thana and Kolaba Districts were also included. On March 20,1971 the Government published notification constituting respondent No. 4 as a new town development authority for the purposes of acquiring, developing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6 of the Act was published on December 28, 1972, by the Commissioner, Bombay Division. The notification, inter alia, recites that the lands are needed for the planned development and utilisation in the Trans Harbour Panvel and Trans Thana Creek area for industrial, commercial and residential purposes. The notification under section 6 of the Land Acquisition Act was followed by declaration under section 7 and notices under section 9 were duly served upon the petitioners on April 6, 1973. The petitioners filed their replies on July 3 and July 19, 1973 principally claiming that their lands are not liable to be acquired because the acquisition would deprive them of the shelter. As several lands were proposed to be acquired for development of new town, respondent No. 4 had floated a scheme whereby the owners who would voluntarily surrender their lands were promised 80% compensation as an advance payment. Large number of owners opted for the scheme and voluntarily surrendered their lands and received advance compensation. The voluntary surrender of land was accepted in accordance with provisions of paragraphs 21 and 261 (a) of the Land Acquisition Manual. The petitioners offered to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition and seek writ of mandamus for a declaration that the land admeasuring 1760 sq. meters stands released from acquisition. The petitioners are also seeking a writ to direct respondents Nos. 1 to 4 to release and exclude the area of 1760 sq. meters from acquisition and prevent the respondents from taking possession thereof. The petitioners claim that respondents Nos. 1 to 4 have acted in arbitrary, unreasonable and discriminatory manner and are guilty of legal mala fides in the manner in which the lands of the petitioners are threatened to be acquired. The petitioners also claim that apart from the fact that there was an agreement between the petitioners and the respondents to release the land in dispute, it is the policy of the respondents not to acquire houses situated within the municipal limits and also houses contiguous to the municipal limits, provided the houses were constructed prior to February 4,1970. The petitioners claim that the Deputy Secretary to the Government of Maharashtra, General Administration Department had addressed a letter dated April 20, 1971 to the Collector, Thana and Kolaba in that respect and the respondents are bound to give effect to that polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 26, 1976, reference was made to the fact that in the area of about 9' Gunthas there is an existing house, a well and the house is occupied by the family members of the petitioners. The learned counsel further submitted that only area of 1 Acre 20 Gunthas was surrendered and the possession receipt also refers to the area of 1 Acre 20 Gunthas and not the balance of the land proposed to be acquired. It was further contended that the award is also for the area of 1 Acre 20 Gunthas and nowhere makes a reference that separate award will be passed in respect of the remaining area over which a house is standing. These circumstances, according to Shri Paranjape, are tell-tale circumstances to establish the existence of an agreement. It was also contended that the respondents did not care to file affidavit of either Niphadkar or Gokhale to deny the arrival of the agreement between the parties. We are unable to find any merit in the contention. The reliance upon the documents is entirely misconceived. It was open for the petitioners to voluntarily surrender the portion of the land proposed to be acquired and receive 80% compensation as advance payment. The petitioners chose to adopt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt submitted, and in our judgment, with considerable merit, that it is not open to exercise powers under section 48 of the Act without publication of notification in the Official Gazette. The learned counsel urged that it is not left to any officer of the Government to determine whether land should be withdrawn from the acquisition and such a declaration is possible only at the behest of the Commissioner who had published notification under section 4 and section 6 of the Land Acquisition Act, and the declaration must be published in the same manner as the earlier notifications under section 4 and section 6 are published. Shri Paranjape on the other hand submitted that it is not necessary to exercise powers under section 48 of the Land Acquisition Act because section 48 is not the sole repository of the power of withdrawal and such power can be gathered from the provisions of section 21 of the General Clauses Act. The learned counsel also submitted that section 48 does not prescribe the mode in which the withdrawal should be effected, and therefore, it is not necessary for the Government or the Commissioner to publish notification in the Official Gazette to declare the withdrawal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om acquisition without reference to section 48 of the Land Acquisition Act cannot be accepted. Once notification under section 6 is published and then if the Government desires to withdraw the land from acquisition, the right to seek compensation due for the damage suffered by the owner in consequence of notice under section 9 accrues and the Government is bound to determine the amount in accordance with sub-section (2) of section 48 of the Land Acquisition Act. Till publication of notification under section 6 and service of notice under section 9, the right to claim compensation is not available. The submission of Shri Paranjape that the withdrawal of land from acquisition under section 48 need not be by publication of notification in the Official Gazette also cannot be accepted. The contention that provisions of section 48 do not prescribe for a particular mode and the Manual of Land Acquisition gives guidelines to the Special Land Acquisition Officer providing that publication of notification is not required cannot be accepted. It is undoubtedly true that section 48 does not prescribe for a mode or the manner in which the lands can be withdrawn, but if the steps for acquisition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically asked as to whether the Government has published any notification indicating withdrawal under section 48 of the Land Acquisition Act, the answer was in the negative. Shri Paranjape also submitted that respondent No, 4 had sanctioned proposals for exclusion of residential properties from acquisition in respect of Survey No. 316 which has two structures. Survey No. 286 which has six houses and Survey No. 230. The learned counsel pointed out the location of these survey numbers from the map annexed to the petition and the mere perusal establishes that these lands, about which the petitioners make complaint, are situated within the original municipal limits of Panvel, while the lands of the petitioners are outside the municipal limits. The notifications under sections 4 and 6 of Land Acquisition Act specifically exclude house properties situated within original limits of Panvel Municipality. The grievance of the petitioners therefore is without any merit. Shri Paranjape referred to the decision reported in AIR 1988 All. 202, Surya Lal Yadav and others vs. State of U. P. and another, and the decision of the Supreme Court reported in AIR 1988 SC 2036, Union of India and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly redundant. Shri Sawant referred to an unreported decision of the Division Bench of this Court in Writ Petition No. 1709 of 1979 delivered on August 7, 1982and where the notification involved in the present case was also in question. The Division Bench observed that it is open for the Government to publish more than one notifications under section 6 and it is equally open for the Land Acquisition Officer to pass separate awards. We are in respectful agreement with the conclusion of Division Bench. In these circumstances the contention of Shri Paranjape requires to be turned down. 9. Shri Paranjape next submitted that in any event the property in dispute in the present petition, that is an area of 1760 sq. meters cannot be acquired under provisions of the Land Acquisition Act in view of the policy decision taken by the State Government and reflected in the letter dated April 20, 1971 addressed to the Collector, Thana and Kolaba by the Deputy Secretary to the Government of Maharashtra, General Administration Department. The letter, inter alia, recites that village Gaothans in municipal limits have been excluded from land acquisition. The letter further states that considerabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions prescribed under the letter are satisfied in the case of the petitioners. Shri Paranjape submitted that the State Government is entitled to issue directions to respondent No. 4 in accordance with provisions of sections 114 and 154 of the Maharashtra Regional and Town Planning Act. Sub-section (2) of section 114, inter alia, provides that the State Government may give directions to any development authority for restricting the exercise by it of any of its powers under the Act or for requiring it to exercise those powers in any manner specified in the directions. Section 154 prescribes that every development authority shall carry out such directions or instructions as may be issued from time to time by the State Government for the efficient administration of this Act. The reliance on the provisions of sub-section (2) of section 114 and section 154 of MRTP Act is not accurate. The letter dated April 20, 1971 is not addressed to respondent No. 4, but to the Collectors of Thana and Kolaba Districts. The issue is not as to whether the Government can give instructions or directions to the authority constituted for setting up of the new township, but whether the instruction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jape submitted that the authorities were bound by the executive instructions, which are in a shape of guidelines as to which property should be acquired and which should be excluded. It was submitted that all properties, which fall within the compass of letter dated April 20, 1971 automatically stand withdrawn from acquisition, whatever may be the stage of the acquisition proceedings. It is impossible to accede to the submission. The proceedings undertaken under the Land Acquisition Act cannot be controlled nor the lands can be withdrawn by reference to such executive instructions. The manner of withdrawal of land at the behest of the Government after publication of section 6 notification is only by adopting steps under section 48 of the Act. The submission of Shri Paranjape that after April 20, 1971 the right to acquire lands which satisfies the conditions set out in the letter is wiped out cannot be accepted. The right to acquire land is on the doctrine of eminent domain and the acquisition is carried out in accordance with the statutory provisions under the Land Acquisition Act. Once the Commissioner is satisfied that the lands are required for the public purpose and the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... municipal limits and therefore the lands of the petitioners stand excluded. The assumption of the learned counsel that the house of the petitioners is contiguous to the existing municipal limits is not correct. With reference to the map produced by the petitioners Shri Sawant submitted that the house of the petitioners is situated at the distance of half kilometer from the municipal limits, while Shri Paranjape submitted that it is at a distance of 500 sq. meters. The expression "contiguous" is extremely vague and the directions contained in the letter dated April 20, 1971 give arbitrary powers to the Collector to determine which house can be excluded. Taking into consideration the meaning of the expression "contiguous" in its common parlance, it is futile to suggest that the house situated at a distance of half kilometer can be considered as contiguous to the existing municipal limits. It is not in dispute that the petitioners' house was the sole construction in the area. In these circumstances the claim of respondent No. 4 that the petitioners' property does no attract the conditions for exclusion as prescribed for by the letter dated April 20, 1971 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration is executing lease for duration of 99 years and the lease is granted on payment of premium. Explanation to Regulation 3 provides that the declared premium shall mean the premium calculated at such rate or rates as may be determined by the Corporation in the months of January and July each year in respect of the lands with reference to the areas in which such lands are situated Shri Sawant submitted that on acquisition the respondent No. 4 is witling to give the land to the petitioners on lease on payment of premium. Shri Paranjape complained that the premium settled by the Corporation is extremely heavy and has no relation whatsoever to the compensation which will be payable for acquisition of properties under the Land Acquisition Act. Shri Sawant pointed out that the development of the new township follows what is known in the language of the town planning as the node pattern'. The site for the new township is divided into about twenty nodes intended for development in a phased programme, and there will be gradual fusion of these nodes into a town eventually. The learned counsel pointed out that in every node the disposable component of lands hovers around 50% of its t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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