In this context, reliance can be
placed on the judgment in the matter of Gokaraju Rangaraju Vs.
State of Andhra Pradesh, reported in (1981) 3 SCC 132. It is held
in the said judgment that:
“A Judge, de facto, is one who is not a
mere intruder or usurper but one who holds
office, under colour of lawful authority, even
though his appointment is defective and may
later be found to be so. Whatever be the defect
of his title to the office, judgments pronounced
by him and acts done by him when he was
clothed with the powers and functions of the
office, albeit unlawfully, have the same efficacy
as judgments pronounced and acts done by a
judge de jure. Such is the de facto doctrine,
born of necessity and public policy to prevent
needless confusion and endless mischief.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8250 OF 2010
Avadhut Rokdoba Shinde,
Versus
The State of Maharashtra,
CORAM : R.M.BORDE &
SUNIL P. DESHMUKH, JJ.
Pronounced on : 03 July, 2013.
Citation; 2014 (1) ALLMR 260 Bom
The petitioners, who are holders of small plots out of
land situate at village Ladgaon, are questioning proceedings of
acquisition of lands at the instance of MIDC (Additional Shendra
Industrial Area) undertaken by Respondent No.3 Sub Divisional
Officer & Land Acquisition Officer, Aurangabad. The petitioners
also pray for issuance of writ of quo warranto to Respondent No.3
calling upon him to explain as to in what capacity of law, he has
proceeded in respect of acquisition of lands situate at village
2
Ladgaon, Taluka and District Aurangabad.
Petitioners are admittedly purchasers of small pieces of
plots situate at village Ladgaon on different dates between the
period 2004 to 2009. The lands in village Shendra, Taluka and
District Aurangabad, were notified under Section 1(3) of the
Maharashtra Industrial Development Act, 1961 (herein after
referred to as “Act of 1961”), as “Industrial Area” for establishment
of Shendra Urban Industrial Zone on 06.01.1996. According to
petitioners, the Sub Divisional Officer & Land Acquisition Officer
was delegated with the powers under Sections 32, 32(2), 36 and 38
of the Act of 1961. Petitioners contend that the delegation of
powers is restricted to the land covered by notification issued by
Government on 06.01.1996 and it does not extend to the lands
purchased by petitioners.
3
It is further stated that Notification under Section 1(3)
of the Act of 1961 was issued on 15.04.1998, declaring intention to
acquire the land situate at village Ladgaon including the plots
purchased by petitioners. The vendors of petitioners were issued
notices under Section 32(2) of the Act of 1961 on 07.11.2009.
According to petitioners, they are not in receipt of the notices
issued by the Respondentauthorities, however, they, on their own,
approached Respondent No.3 and called for certain information
It has further been stated that notice under Section
and documents by presenting applications on 07.12.2009.
32(2) of the Act of 1961 was published in Government Gazette on
25.02.2010. The initial applications tendered by petitioners were
not attended, however, the matter was prescribed for hearing on
objection by publishing a notice on 06.04.2010. Petitioners were
also served with notices of hearing. The advocates for the
petitioners were also served with the notice of hearing as regards
acquisition proceedings on 10.04.2010, informing that hearing of
objections is prescribed on 12.04.2010. According to petitioners,
there were numerous objections received, however, Respondent
authorities, without considering objections in its proper
perspective, proceeded to issue notification under Section 32(1) of
the Act of 1961. Petitioners contend that notification under Section
32(1) issued by Respondents on 26.05.2010 has not been
published in the Official Gazette. Petitioners contend that
Respondent No.3 has no authority in law to proceed with the
acquisition proceedings.
Apart from legal challenges in respect of acquisition
proceedings, petitioners contend that acquisition of an area for
Additional Industrial Estate is not at all necessary since hundreds
of hectares of land, belonging to MIDC, is still unutilised. It is also
contended that there is no infrastructure developed for
establishment of MIDC. In the absence of development of
infrastructure and providing for basic amenities for the Industrial
area, like power and water resources, the establishment of
Industrial estate and acquisition of property for the said purpose,
Government.
The contentions raised by petitioners have been
6
amounts to abuse of authority vested in the MIDC and State
controverted by Respondent No.3Sub Divisional Officer by
presenting an affidavitinreply. It is stated in the affidavit by
Respondent No.3, that the State Government has issued a
notification, as contemplated under Section 1(3) of the Act of 1961
declaring the area, in question, as industrial area on 15.04.1998
and 06.01.1996. Both the notifications are published in
Government Gazette. It is stated that upon notifying these lands
under Section 3(1) , in view of provisions of Section 31 of the Act,
the provisions of Chapter VI would apply so far as acquisition and
disposal of land is concerned. The powers are vested with the
State Government, as contemplated under Section 32 of the Act
and the Government may acquire the land for the purposes of
development of industrial area or for any other purpose in
furtherance of object of the Act. It is also contended that
notifications under Section 31(1) and (2) of the Act of 1961 have
been published on 25.02.2010 and 03.06.2010, respectively. The
contention that Respondent No.3 has no authority in law to take
up land acquisition proceedings does not hold good in view of the
provisions of Act of 1961 and Rules framed thereunder.
It is further stated that after completing legal
formalities, award has been declared and amount of compensation
has also been paid. The total land under acquisition is 246.38
hectares comprising of 79 gut numbers. So far as 61 gut numbers
are concerned, process of acquisition is complete by declaring
awards. It is also stated that out of remaining 15 gut numbers,
which are divided into plots, in case of 14 gut numbers, award is
passed. It is also stated that out of 14 awards, in 9 cases
compensation is paid and in remaining matters, notices for
payment have been issued. It is stated that acquisition
proceedings are almost finalised and major portion of land has
been taken in possession and also handed over to MIDC.
8
An additional affidavit has been presented by
Respondent No.3 wherein it is contended that Rules framed under
Act of 1961 empower the Collectors, Assistant Collectors, Deputy
Collectors and Sub Divisional Officers to proceed with the
acquisition proceedings within their respective jurisdiction. It is
also stated in the affidavit that Section 32 of the Act of 1961
empowers the State Government to acquire the land and the
procedure, as contemplated under Act of 1961 for acquisition of
land, has been followed properly and after acquisition of lands,
possession of the said lands has already been handed over to
MIDC.
An affidavitinreply has also been presented by
Respondents No.2 and 4 controverting the contentions raised by
petitioners in the petition. The allegations of mala fide, raised in
the petition, have also been refuted by the concerned Respondents.
Heard learned Counsel for respective parties.
11 10 Petitioners have presented notes of arguments wherein
following grounds of challenge have been raised:
I)
Whether the impugned acquisition
process is vitiated as instituted by a person
having no authority in Law ?
II)
Whether an authority even while
exercising powers u/s 42 of the MID Act
r.w. rule 28 of rules framed under the said
Act, can form opinion as to necessity of
acquisition as contemplated u/s 32(2) of
the MID Act and take decision of existence
of public purpose as contemplated u/s
32(1) of the MID Act ?
wp825010.odt
If no,
A)
Whether initiation of the
acquisition proceedings in absence
of any opinion formed by the State
Government confirming necessity
for acquisition as mandatorily
required u/s 32(1) is legally
permissible ?
B)
Whether the impugned
acquisition can be treated as
concluded in absence of the
decision of the State Government as
mandatorily required u/s 32(2) of
the MID Act ?
III)
Whether the impugned acquisition
proceedings are vitiated for arbitrary
exercise of jurisdiction thereby denying
right of meaningful hearing as
contemplated under the scheme of the MID
Act ?
IV)
Whether the impugned acquisition is
unconstitutional for want of rational nexus
with the object to be achieved more so
when the unrebutted and admitted facts
on record confirm the facts that,
A)
The basic natural resources
required for development of an
industrial area are not available nor
can be made available ?
B)
Unutilised
developed
Industrial area of more than the area
of the lands to be acquired is either
rendered idle or is being converted to
other user as residential and/or
commercial to benefit the builders ?
V)
Whether the impugned acquisition is
vitiated by mala fide motive more so when
the unutilised developed Industrial area of
more than the area of the lands to be
acquired is either rendered idle or is being
converted to other user as residential
and/or commercial to benefit the builders ?
Petitioners have reiterated their contentions raised in
the petition.
It has been contended on behalf of Respondent No.2
MIDC that all the petitioners are subsequent purchasers i.e.
purchasers of plots after declaration of notification dated
15.04.1998 under Section 1(3) read with Section 30 of the Act of
1961. Such notification is in the nature of notification under
Section 4 of the Land Acquisition Act. It is contended that notified
area is already declared and transactions of sale postnotification,
concerning the land situate in the notified area, are illegal and
subsequent purchasers do not acquire any valid title. Such
purchasers do not have entitlement to challenge acquisition
proceedings. It is contended that notices of acquisition have been
served on the original owners. Since petitioners are purchasers of
plots postnotification, they do not have entitlement to object to the
acquisition proceedings. Even in spite of these facts, petitioners
were heard in the matter. It is contended that an area to the
extent of 246.38 hectares of village Ladgaon is under acquisition.
Out of which, holding of petitioners, taken together, is about
9787.62 square meters i.e. total area admeasuring 1.42 hectares.
It is contended that huge area of land has been acquired for
planned development of industrial area. Petitioners’ land is
negligible area in comparison to the total land acquired.
Petitioners, who are persons interested, are only entitled to receive
compensation and acquisition proceedings, at their instance,
cannot be disturbed. It is also contended that in most of the cases,
predecessorsintitle of petitioners have received compensation. It
is stated that consent award has been passed in respect of 79 gut
numbers and owners have executed ‘kararpatra’ (agreement) and
accepted amount of compensation.
So far as the objection in respect of issuance of writ of
quo warranto is concerned, it is contended that Section 42 permits
delegation of powers and functions of the State Government under
Chapter VI of the Act to any of its officers by Rules made in that
behalf. Section 63 is a rule making power which deals with
delegation of powers under Chapter VI. It is contended that under
Rule 28, powers vested in the State under Section 32 are delegated
to Assistant and Deputy Collectors. Section 2(34) of the
Maharashtra Land Revenue Code defines Sub Divisional Officer
means an Assistant or Deputy Collector, who is placed incharge of
one or more sub divisions in the district. Since Respondent No.3 is
Assistant/Deputy Collector, being Sub Divisional Officer and
answers the authority designated under Rule 28, to whom power of
the State Government is delegated, the objection raised by
petitioners does not merit consideration.
It is contended that even assuming without admitting
correctness of stand of the petitioners that it was outside the
competence of Sub Divisional Officer, Aurangabad to undertake
proceedings of acquisition, still in the fact situation, acquisition
proceedings are not invalidated. The de facto doctrine is doctrine
of general applicability and may be invoked to validate acts of de
facto public officers. (AIR 1976 AP 193).
So far as allegations in respect of mala fide are
concerned, it is contended that no such allegations are made in the
written objections dated 15.04.2010. Even otherwise, allegations
against the Minister, Department of Industries, are quite bald and
vague and in the absence of specific details, those allegations need
not be taken into consideration.
14
It would be appropriate to refer to provisions of Section
1(3) , which provides that:
1(3) This Act, except Chapter VI, shall come
into force at once; Chapter VI shall take effect
in such area, from such date as the State
Government may, from time to time, by
notification in the Official Gazette, appoint in
that behalf.
In the instant matter, notification has been published
ig
under Section 1(3) of the Act notifying additional industrial area on
15.04.1998, which includes the land situate at village Ladgaon,
including plots owned by petitioners. Section 31 of the Act
provides that, the provisions of this Chapter shall apply to such
areas from such dates as have been notified by the State
Government under subsection (3) of Section 1. It is, thus, clear
that the provisions of Maharashtra Industrial Development Act,
1961 are made applicable to the lands covered by notifications
issued under Section 1(3) of the Act on 15.04.1998 including the
lands which are subject matter of these petitions. Sections 31 &
32 of the Act of 1961 read thus:
31
The provisions of this Chapter shall
apply to such areas from such dates as
have been notified by the State Government
under sub section (3) of section 1.
32 Compulsory acquisition :
1) If at any time in the opinion of the
State Government any land is required for
the purpose of development by the
corporation, or for any other purpose in
furtherance of the objects of this act, the
State Government may acquire such land
by publishing in the official gazette a notice
specifying the particular purpose for which
such land is required, and stating therein
that the State Government has decided to
acquire the land in pursuance of this
section.
2)
Before publishing a notice under sub
section (1) the State Government shall by
another notice call upon the owner of the
land and any other person who in the
opinion of the State Government may be
interested therein, to show cause, within
such time as may be specified in the notice,
why the land should not be acquired [The
State Government shall also cause public
notice to be given in the manner laid down
in section 53 and in the Official Gazette] :
[ Provided that, if the land proposed to be
acquired falls within a scheduled Area then
the State Government shall before such
acquisition consult :
(i)
the Gram “Sabha and the Panchayat
concerned if the land is falling within the
area of one Panchayat;
(ii)
the concerned Gram Sabhas and the
Panchayat Samiti if the land falling within
the area of more than one Panchayats in
the Block concerned;
(iii) the concerned Gram Sabhas and the
Zilla Parishad if the land is falling within
the area of more than one Block in the
district concerned;
such consultation shall be carried out in
the manner as may be laid down by the
State Government by issuing a general or
special order in this behalf:
ig
Provided that the decision taken by
the majority of the Gram Sabhas concerned
by passing a resolution in the above
matters shall be binding on the concerned
Panchayat Samiti or the Zilla Parishad as
the case may be.
Explanation : For the purposes of these
provisos :
(i)
the expressions “Gram Sabha” or
“Panchayat” and “Scheduled Areas” shall
have meanings, respectively assigned to
them in the Bombay Village Panchayats
Act, 1958;
(ii)
the expressions “Panchayat Samiti”
and “Zilla Parished” shall have the
meaning, respectively, assigned to them in
the Maharashtra Zilla Parishads and
Panchayat Samitis Act, 1961.]
3.
After considering the cause, if any,
shown by the owner of the land and by any
other person interested therein, and after
giving such owner and person an
opportunity of being heard, the State
Government may pass such orders as it
deems fit.
4.
When a notice under sub section (1)
is published in the Official Gazette, the
land shall, on and from the date of such
publication, vest absolutely in the State
Government free from all encumbrances :
[ Provided that, if, before actual
possession of such land is taken by or on
behalf of the State Government, it appears
for the State Government that the land is
no more required for the purposes of this
Act, the State Government may, by like
notice, withdraw the land from acquisition
and on the publication of such notice in the
Official Gazette, the land shall revest with
retrospective effect in the person in whom it
was vesting immediately before the
publication of the notice under sub section
(1) subject to such encumbrances, if any, as
may be subsisting at that time. The owner
and other persons interested shall be
entitled to compensation for the damage, if
any, suffered by them in consequence of the
acquisition proceedings as determined in
accordance with the provisions of section
33.]
5)
Where any land is vested in the State
Government under sub section (4) the State
Government may, by notice in writing, order
any person who may be in possession of the
land to surrender or deliver possession
thereof to the State Government or any
person duly authorized by it in this behalf
within thirty days of the service of the
notice.
6)
if any person refuses or fails to
comply with an order made under sub
section (5), the State Government may take
possession of the land and may for that
purpose use such force as may be
necessary.
[7)
where the land has been acquired for
the corporation or any local authority, the
State Government shall, after it has taken
possession thereof, by notification
published in the Official Gazette, transfer
the land to the Corporation or that local
authority, as the case may be, for the
purpose for which it was acquired, and the
provisions of section 431A shall apply to
any land so transferred.]
That, so far as locus standi of petitioners to raise
objection to the acquisition proceedings, is concerned, it cannot be
lost sight of the fact that a notification, as contemplated by Section
1(3) of the Act of 1961, has been issued on 15.04.1998 whereby, by
virtue of provisions of Section 31, provisions of Chapter VI of the
Act are made applicable. A notification under Section 1(3) is
comparable with notification under Section 4 of the Land
Acquisition Act. Once a notified area is declared, post notification
sales of the land, situate in the notified area, are illegal and such
transfers shall not bind the State. The purchasers of the land post
notification do not get entitlement to challenge the acquisition
proceedings.
Respondents have placed reliance on the judgment in
the matter of Ganpat Balaji Parate Vs State of Maharashtra and
others, reported in 1991 (2) MhLJ 1515. It is observed in
paragraph 16 of the judgment, thus:
This takes us to the point relating to
absence of personal hearing before
issuance of notification under subsection
(1) of section 31. Examination of the
provisions of the Act would reveal that
though it is in many matters dissimilar to
the LA Act, the dissimilarity is not complete
and whole. Notification under subsection
(1) of section 31 of the Act is in the nature
of notification under section 4 of the LA Act
and at that stage hearing is neither
necessary nor feasible. The decision at that
stage essentially pertains to a broad policy
matter based exclusively on an expert
opinion. Therefore, there is nothing
unreasonable and unfair in not granting
hearing at that stage.
Reference can be made to a judgment in the matter of
Star Wire (INDIA) LTD. V/s State of Haryana and others,
reported in 1996 (11) SCC 698, wherein it has been held that
encumbrances created by erstwhile owner, after publication of
notification under Section 4(1), does not bind the State and that
the subsequent purchaser has no right to challenge legality of the
acquisition proceedings. In paragraph 4 of the judgment, after
considering earlier judgments of the Supreme Court, it is observed
thus:
In this case, admittedly, the petitioner
has purchased the property covered by the
notification under Section 4(1) after it was
published and, therefore, its title is a void
title. It has no right to challenge the
acquisition proceedings much less the
award. The Division Bench of the High
Court has exhaustively reviewed the case
law to negate the claim of the petitioner.
We do not find any illegality in the
judgment of the High Court warranting
interference.
For the aforesaid proposition, reliance also can be
placed on the judgment in the matter of Gurmukh Singh Vs.
State of Haryana, reported in JT (1995) 8 SC 208, Yadu Nandan
Garg Vs. State of Rajasthan, Sneh Prabha Vs. State of U.P.,
reported in (1996) 1 SCC 334 and 1996 (7) SCC 426, respectively.
It has also been held in the judgment of U. P. Jal Nigam Vs. Kalra
Properties (P) Ltd., reported in (1996) 3 SCC 124, that the
purchaser of the property, after the notification under Section 4(1)
was published, is devoid of right to challenge validity of the
notification or irregularity in taking possession of the land before
publication of the declaration under Section 6. A similar
proposition has been propounded by the Division Bench of this
Court in the matter of Mohmadbhai s/o Miyabhai & others Vs.
State of Maharashtra & others, reported in 2000 (1) MhLJ 729.
Thus, since petitioners are purchasers of small plots of
land after publication of notification under Section 1(3) of the Act
of 1961, which is comparable to Section 4 of the Land Acquisition
Act, they do not have entitlement to challenge acquisition
proceedings.
Petitioners have objected to the acquisition proceedings
on the ground that they have not been issued notices as required
by Section 32(2) of the Act. In this respect, it has to be taken note
of that notice of acquisition is served on the original owner and
petitioners are purchasers of small plots after publication of
declaration under Section 1(3) of the Act of 1961. Failure to serve
such notices does not have an effect of invalidating acquisition
proceedings. In this context, reliance can be placed on the
judgment in the matter of State of Maharashtra & another Vs.
Umashankar Rajabhau & others, reported in (1996) 1 SCC 299
and in the matter of Nasik Municipal Corporation Vs. Harbanslal
Laikwant Bajpal & others, reported in (1997) 4 SCC 199.
21
Petitioners have placed reliance on the judgment in the
matter of Babu Ram & another Vs. State of Haryana & another,
2010(1) AIR (SCW) 257, wherein it has been held that, “A right
under Section 5A is not merely statutory but also has the flavour
of fundamental rights under Articles 14 and 19 of the
Constitution.” In the reported matter, the authorities had taken
recourse to Section 17(2) of the Land Acquisition Act and invoked
urgency clause. The Supreme Court has observed that:
“.... Great care had to be taken by the
authorities before resorting to Section 17(4) of
the Land Acquisition Act and that they had to
satisfy themselves that there was an urgency of
such nature as indicated in Section 17(2) of the
Act, which could brook no delay whatsoever.”
In the reported matter, State of Haryana was directed to consider
the objections presented under Section 5A of the Land Acquisition
Act within specified period and thereafter to proceed with the
matter.
Reliance is also placed on the judgment in the matter
of Hindustan Petroleum Corporation Limited Vs. Darius Shapur
Chenai, reported in 2005 (7) SCC 627. It is observed in paragraph
10 of the said judgment, thus:
10. It is trite that hearing given to a
person must be an effective one and not a
mere formality. Formation of opinion as
regard the public purpose as also
suitability thereof must be preceded by
application of mind as regard consideration
of relevant factors and rejection of
irrelevant ones. The State in its decision
making process must not commit any
misdirection in law. It is also not in dispute
that Section 5A of the Act confers a
valuable important right and having regard
to the provisions contained in Article 300A
of the Constitution of India has been held
to be akin to a fundamental right.
Reliance is also placed on the judgment in the matter
of Farid Ahmed Abdul Samad Vs. Municipal Corporation of City
of Ahmedabad, reported in 1976 (3) SCC 719, wherein it has been
observed that, “ An opportunity of personal hearing is mandatory
and does not rest on the demand for the same by the landowner.”
For the similar proposition, reliance is placed on the
judgments in the matter of Mandir Sita Ramji Vs. Lt.Governor of
Delhi & others, reported in 1975 (4) SCC 298; Narindrajit Singh
and Ranjit Singh Vs. State of Uttar Pradesh, reported in 1973 (1)
SCC 157.
As has been observed above, it is noticed that
petitioners are purchasers of small pieces of plots out of the
acquired land after issuance of notification under Section 1(3) of
the Act of 1961, which is comparable with Section 4 of the Land
Acquisition Act. In view of the judgment of the Supreme Court, to
which reference has already been made, petitioners do not have
entitlement to challenge acquisition proceedings. Apart from this,
advocates for petitioners were given an opportunity to tender
objections and those were in fact considered. It is also to be taken
note of that the original land owners have been served with the
notices under Section 32(2) of the Act and they were heard in the
matter. The original land owners, after declaration of awards,
have accepted amount of compensation. In the facts and
circumstances, reliance placed on the judgments, cited supra, by
the petitioners to contend that they have entitlement to raise
objections and in the absence of consideration of their contentions,
acquisition proceedings are vitiated, does not deserve consideration
and objection raised by petitioners to the validity of acquisition
proceedings deserve to be rejected.
The second issue raised by petitioners is in respect of
competence of Respondent No.3 to conduct the land acquisition
proceedings and declare award in the absence of issuance of
authorisation by the State Government, in that behalf, by
publishing notification in the official Gazette. It is contended that
so far as earlier acquisition proceedings initiated in pursuance to
notification dated 06.01.1996 in respect of Shendra Urban
Industrial Development Zone is concerned, the Sub Divisional
Officer and Land Acquisition Officer was delegated with the powers
under Sections 32, 33(2), 36 and 38 of the Act of 1961 by issuing
notification on 07.01.1996 by the State Government. It is
contended that authorisation to Sub Divisional Officer to conduct
the land acquisition proceedings is referrable to the lands and the
villages mentioned in the notification issued by the Government on
06.01.1996. The said notification is not referrable to the impugned
acquisition. So far as instant acquisition is concerned, a
notification has been issued by the State on 15.04.1998 under
Section 1(3) of the Act of 1961. According to the petitioners, there
is no authorisation in favour of the Sub Divisional Officer to
conduct acquisition proceedings in respect of land covered by
notification dated 15.04.1998 and as such, Respondent No.3 does
declare the award.
not have entitlement to conduct acquisition proceedings and
In order to appreciate the contention raised by
petitioners, reference can be made to Section 42 of the Act of 1961,
which provides that the State Government may, if it thinks fit,
delegate any of its powers under this Chapter to any of its officers
by rules made in this behalf. Section 63(2) (h) provides for framing
of Rules under Section 42, the delegation of powers of Government
under Chapter VI. In exercise of powers conferred under the Act,
the State has framed rules and Rule 28 thereof reads thus:
28 Powers of State Government:
The power of the State Government under
Section 32, subsection (2) of Section 33 (to the
extent of (Rs.37,500 per hectare) (but subject to
the limit of (Rs.2,50,000) for each case of
acquisition) for determination of compensation
by mutual agreement), 36 and 38 are hereby
delegated to the Collectors, Assistant and
Deputy Collectors within their respective
jurisdiction and any officer not below the rank
of Deputy Collector, specially appointed by the
State Government in that behalf).
The Rule prescribes that, powers of the State
Government under Sections 32, 33(2), 36 and 38 are hereby
delegated to the Collectors, Assistant and Deputy Collectors within
their respective jurisdiction. In this context, reference can be
made to the provisions of Section 2(34) of the Maharashtra Land
Revenue Code, which provides the definition of Sub Divisional
Officer means, an Assistant or Deputy Collector, who is placed in
charge of one or more Sub Divisions of the district. Thus,
Respondent No.3 is an Assistant/Deputy Collector, being the Sub
Divisional Officer and answers the authority designated under rule
28, to whom power of State Government is delegated. Since rule
28 itself delegates powers of the State Government under Sections
32, 33(2), 36 and 38 to the Collectors, Assistant and Deputy
Collectors and Sub Divisional Officer, being an Assistant or Deputy
Collector by virtue of Section 2(34) of Maharashtra Land Revenue
Code, he is authorised to conduct proceedings under Section 33(2)
and other provisions of the Act of 1961. The objection raised by
petitioners, in this respect, is devoid of substance, hence deserves
to be rejected.
27
It is contended that Respondent No.3 has taken all the
steps relating to acquisition, such as, (a) inviting objections to the
proposed acquisition i.e. issuance of notice under Section 32(2)
dated 07.01.2009; (b) publication of notification in official Gazette
dated 25.02.2010 inviting objections; (c) publication of notice under
Section 32(2) in the Daily News paper “Sakal: dated 06.04.2010; (d)
hearing of the objections of petitioners on 12th, 13th and 15th April,
2010. Petitioners appeared through their advocates and submitted
objections in writing and ultimately, after following procedure,
notification came to be issued on 24.05.2010 under Section 32(1)
of the Act of 1961. Even otherwise, accepting contentions raised by
petitioners without admitting same, it is contended by
Respondents that by invocation of de facto doctrine, the acts of
public officers are required to be construed as valid. It is
contended that de facto doctrine is born out of necessity and
public policy to prevent needless confusion and endless mischief.
This doctrine was engrafted as a matter of policy and necessity to
protect the interest of public. In this context, reliance can be
placed on the judgment in the matter of Gokaraju Rangaraju Vs.
State of Andhra Pradesh, reported in (1981) 3 SCC 132. It is held
in the said judgment that:
“A Judge, de facto, is one who is not a
mere intruder or usurper but one who holds
office, under colour of lawful authority, even
though his appointment is defective and may
later be found to be so. Whatever be the defect
of his title to the office, judgments pronounced
by him and acts done by him when he was
clothed with the powers and functions of the
office, albeit unlawfully, have the same efficacy
as judgments pronounced and acts done by a
judge de jure. Such is the de facto doctrine,
born of necessity and public policy to prevent
needless confusion and endless mischief.
In this context, reliance is also placed on the judgment
in the matter of Pushpadevi M. Jatia Vs. M.L.Wadhawan,
Additional Secretary, Government of India & others, reported
in (1987) 3 SCC 367 and in the matter of Yashwant Dagdu More
MhLJ 326.
It is contended that in all 79 gut numbers from village
28
Vs. Mayuresh Builders, Nashik & others, reported in 2009 (1)
Ladgaon are notified, consent awards in respect of all 79 gut
numbers are already passed and lands covered under the
notification for acquisition are acquired. The land owners have
executed agreement and have accepted amount of compensation.
Some of the petitioners i.e. petitioners no.3 and 10 also have
consented for acquisition and have accepted the compensation
without any demur. The lands covered under notification came to
be vested in the Government. It is contended that an area to the
extent of 246.38 hectares from village Ladgaon is under
acquisition, out of which, holding of petitioners is about 9787.62
square meters {0.98 hectare} + {0.44} hectare, total area
admeasuring 1.42 hectare [3 acres 32 gunthas]. The total land
belonging of the petitioners, taken together, is a very small fraction
out of total area of 246.38 hectares, which has been acquired by
the State. The land belonging to the petitioners is a negligible area
in comparison to the total land acquired and as such, persons
interested like petitioners do have only entitlement to receive
compensation; and acquisition proceedings, at their instance,
cannot be disturbed. In this context, reliance can be placed on the
judgment in the matter of May George Vs. Special Tahsildar &
others, reported in (2010) 13 SCC 98. In paragraph no.8 of the
judgment, it is observed thus:
8.
Land measuring 30.80 acres stood
notified and acquired. The land consisted
of large survey numbers and belonged to a
large number of persons. It is not the case
of the appellant that the notification under
Section 4 and declaration under Section 6
were not published or given publicity as
mandatorily required under the law. Once
award was made and possession had been
taken, land stood vested in the State free
from all encumbrances, it cannot be
divested even if some irregularity is found
in the award. As huge area of land had
been acquired for planned development of
industrial town, the land of the appellant
cannot be exempted on any ground
whatsoever. More so, the appellant’s land
was of negligible area in comparison to the
total land acquired and therefore, at the
behest of only one person, the acquisition
proceedings cannot be disturbed.
It is to be noted that a large tract of land covering
various villages have been acquired for establishment of Shendra
Industrial Area as well as Additional Industrial Area in two phases.
The Industrial Estate is a part of larger National Plan and
establishment of DelhiMumbai Industrial corridor and the project
has been financed by International Agencies. Admittedly, 246.38
hectares land has been acquired from village Ladgaon and the total
land, which is divided into several plots, held by the petitioners
comprises of 1.42 hectares, which is a negligible fraction out of the
total area. The petitioners cannot be permitted to withhold the
whole project covering several hundred acres of land. Any order of
restraint, in respect of acquisition of land, does have huge financial
implication and the National Plan of development of Industrial
Estate, involving several hundred crores of rupees, would be
withheld.
30
Apart from this, petitioners do not have legal
entitlement to challenge the acquisition proceedings, since
petitioners are purchasers of small pieces of plots out of notified
area after the date of issuance of notification under Section 1(3)
read with Section 31 of the Act of 1961, which is comparable with
notification under Section 4 of the Land Acquisition Act. The
objections raised by petitioners, in the instant petitions, are devoid
of substance. Both the petitions lack merit.
Both the writ petitions stand dismissed. Rule
31
discharged. No order as to costs. Pending Civil Applications do
not survive and stand disposed of accordingly.
Learned Counsel for petitioners prays for continuation
of order of status quo since they are desirous of availing remedy of
presenting petition to the Apex Court.
Petitioners are purchasers of small plots out of total
larger area admeasuring 246.38 hectares. The total land covered
by plots purchased by petitioners is approximately 1.42 hectares.
The interim order of status quo shall be restricted to the extent of
plots purchased by petitioners for a period of six weeks from today.
R.M.BORDE
SUNIL P. DESHMUKH
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