R.M. Lodha, J.
1. In this writ petition we are concerned with theacquisition of land bearing survey No. 809/2 situatedwithin the limits of Nasik Municipal Corporation. Thisland along with other adjacent lands was designated in theDevelopment Plan of Nasik in the year 1980 for 'Housingfor Dishoused' and 'Stable and 100 feet Road'. The landbeing survey No.809/2 admeasures 7 Hectors 10 ares. Thepetitioners claim to be owners of the said land. On13.08.1982 the acquisition of the land in question wasproposed by the Administrator, Nasik Municipal Council tothe Collector, Nasik, Nasik Municipal Corporation havinginto existence on 8.11.1982 again asked the Collector ofNasik to acquire the land in question vide letter dated16.12.1982. The agreement was entered into between theMunicipal Corporation of Nasik and the State ofMaharashtra on 4.10.1984 concerning the acquisition ofland in question and other adjacent lands. It is not indispute that notification under Section 126 (2) ofMaharashtra Regional and Town Planning Act, 1966 read withSection 6 of the Land Acquisition Act declaring theacquisition of the land in question along with the otherlands for the public purpose stated therein was issued on14.07.1987. The said notification was published in localnewspaper 'Rambhumi' on 18.07.1987 and another localnewspaper 'Bhramar' on 20.07.1987. The notification waspublished in the gazette on 6.08.1987 and was published atvillage Chawadi on 25.09.1987. Under Section 9(1)(2) ofland Acquisition Act notice was issued on 28.09.1987 andpublished on the notice board of (i) Talathi, Nasik and(ii) The Special Land Acquisition Officer No.2, Nasik.Individual notices under Section 9(3)(4) were also issuedto the persons interested. It is not in dispute that on22.09.1989 the award determining the compensation of landin question was passed. Thereafter on 21.10.1989possession in respect of survey No. 809/2 admeasuring 3hectors 26 area was taken by Special Land AcquisitionOfficer as the tenant occupying the said land handed overthe same to the Special Land Acquisition Officer. Thesaid land was handed over by the Special Land AcquisitionOfficer to Nasik Municipal Corporation on that day itself.By the present writ petition, as noted above, theacquisition of the aforesaid land is impugned.
2. Mr. Rajiv Patil, learned counsel for thepetitioners made twofold submission: (i) that the awardhaving been declared and published beyond two years ofdeclaration made under Section 126(4) of MaharashtraRegional and Town Planning Act read with Section 6 of LandAcquisition Act is honest and bad in law and (ii) that thepetitioners were not accorded hearing under Section 126(2)of Maharashtra Regional Town Planning Act prior toissuance of notification under Section 126(4) ofMaharashtra Regional and Town Planning Act read withSection 6 of Land Acquisition Act.
3. Neither of the contentions has any merit. Comingto the first contention first, the narration of datesgiven by us already would clearly indicate that the awardwas passed within two years of the publication of thedeclaration under Section 6 of the Land Acquisition Act.However, before we deal with the facts, we intend to referto Section 11A of the Land Acquisition Act, 1894 based onwhich first argument was advanced before us by the learnedcounsel for the petitioners. Section 11A reads thus:
'11A. Period within which an award shall bemade.--The Collector shall make an award under Section11 within a period of two years from the date ofthe publication of the declaration and if noaward is made within that period, the entireproceedings for the acquisition of the land shalllapse:
Provided that in a case where the saiddeclaration has been published before thecommencement of the Land Acquisition (Amendment)Act, 1984, the award shall be made within aperiod of two years from such commencement.'
4. What is provided by Section 11A is that an awardshall be made by the concerned authority within a periodof two years from the date of publication of thedeclaration and if no award is made during that period,the acquisition proceedings shall lapse. Declaration ismade under Section 6 of the Land Acquisition Act and themode of publication is also provided therein. Accordingto which the declaration shall be published in officialgazette and in two daily newspapers circulated in thelocality in which the land is situated of which at leastone shall be in the regional language and the collectorshall cause public notice of the substance of suchdeclaration to be given at convenient places in the saidlocality and the last dates of such publication and givingof such public notice shall be the date of publication ofdeclaration. Turning back to the dates of events, itwould be seen that the notification under Section 126(4)of Maharashtra Regional and Town Planning Act read withSection 6 of Land Acquisition Act was published in localnewspapers on 18.07.1987 and 20.07.1987 respectively. Thesaid declaration was published in official gazette on6.08.1987 and it was on 25.09.1987 that the declarationwas published at village Chawadi, that is the office ofTalathi. That is the convenient place in the village.The date of publication of the declaration, therefore, inthe facts and circumstances of the present case is25.09.1987. The award was passed on 22.09.1989 which issurely and definitely within two years of the publicationof declaration under Section 6 of the Land AcquisitionAct. The Land acquisition proceedings, therefore, cannotbe said to have lapsed as was contended by the learnedcounsel for the petitioners. The compliance of making ofan award within two years from the date of publication ofdeclaration is factually satisfied. The first contentionof the learned counsel for the petitioners is thusoverruled.
5. The second contention of the leaned counsel forthe petitioners is only noted to be rejected. Thereliance placed by the learned counsel for the petitionerson Sub-section (2) of Section 126 claiming the right ofnotice before issuance of the declaration under Section 6of Land Acquisition Act or under Sub-section (4) ofSection 126 is wholly misconceived. Once the developmentplan has been sanctioned in accordance with law, Section126 provides for acquisition of the land required forpublic purpose specified in plans. The procedurecontemplated under Section 5A is not applicable in suchsituation because the affected persons had already anopportunity of hearing before finalisation of developmentplan. Once the development plan is sanctioned afterfollowing the procedure, the acquisition of the landrequired for public purpose specified in the plan can behad by issuance of notification under Section 126(4) ofMaharashtra Regional & Town Planning Act read with Section6 of the Land Acquisition Act. The contention that thepetitioners ought to have given hearing before issuance ofnotification under Section 126(4) of Maharashtra Regional& Two Planning Act read with Section 6 of the LandAcquisition Act is wholly misconceived.
6. Incidentally we may notice that this Writpetition was to be heard with Writ Petition No. 4023/1989along with two other mattes. Writ Petition No. 4023/1989was disposed of by this Court on 14.10.1994 whereby thisCourt quashed the award. The matter was carried to theSupreme Court an the Supreme Court by its judgment dated9.12.1996 set aside the order of this Court, allowed theappeal and held that the award had not become invalid inlaw nor was it bad in law. The relevant portion of thejudgment of the Apex Court reads thus:
'These appeals by special leave arise fromthe judgment of the Division Bench of the BombayHigh Court dated October 14, 1994, made in'W.P. Nos. 4023/89. Proceedings were initiatedunder the Maharahtra Regional & Town PlanningAct, 1966 (for short, the Act), for framing ascheme and for acquisition of the land in thatbehalf. The Final Development Plan was made onNovember 29, 1980. Notification under Section126(4) of the Act was published on August 6,1987. It was published in the local newspaper onJuly 18, 1987 and in the village chavadi onSeptember 25, 1987. It would appear thatsubsequently, after Section 4(1) notification anddeclaration under Section 6 of the (LandAcquisition Act 1/1894) were published, noticewas issued under Section 9 of the said Act onSeptember 16, 1989. Award came to be passed onSeptember 22, 1989. The respondents filed writpetitions on September 25, 1989. The award waspublished on September 27, 1989. It would appearthat the Draft Plan was issued for reservation ofcertain lands for the public purpose and noobjections were filed. In the meanwhile, byproceedings dated December 26, 1990, the samecome to the deleted by publication of thenotification on June 28, 1993 and Final Plan waspublished on September 30, 1993. On arepresentation made by the Corporation, theGovernment had issued a corrigendum on August 19,1994 restoring the status quo ante with a slightmodification. The High Court in the impugnedorder, while upholding the validity of thenotification under Section 4(1) and declarationunder Section 6 of the Land Acquisition Act, heldthat the award was not valid in law since therewas a corrigendum issued by the Government.Consequently, the procedure provided under theAct was to be followed by operation of Section 37of the Act. Thus these appeals by special leave.
Mr. U.R. Lalit, learned senior counselappearing for the respondents, contends that oncethe reservation has been deleted, status quo antestands restored. As a consequence, the entireprocess required under Section 28 and Section 31read with Section 37 requires to be followed. Inthis case, that was not done. The High Court wasright in quashing the award. We find no force inthe contention.
It is true that if any scheme is modifiedand the Plan has become final, the procedurecontemplated under Sections 28 and 31 read withSection 37 of the Act is require to be adopted.But in this case, it is seen that as per thecorrigendum what has been modified is that theentire site is now reserved for informalhousing and stable. Originally, the entire areawas reserved for stables and 100 wide road. Thereservation was deleted earlier, as stated above,and western part was included in commercial zoneand eastern part was included in the residentialzone on the plan. In view of the fact thatstatus quo ante of the final plan was restored,though a part of it is now said to be used forresidential purpose, the question is: whetherthe entire process of the issuance of the noticeunder Section 28 involving consideration of theobjections and passing of the final plan afterconsideration is required to be gone through? Itis seen that by operation of Section 127 of theAct where any land is included in any of schemeas being reserved, allotted or designated for anypurpose specified therein or for the purpose ofPlanning Authority or Development Authority orAppropriate Authority and the State Government issatisfied that the same land is need for apublic purpose different from any such publicpurpose or purpose of the Planning Authority,Development Authority or Appropriate Authority,the State Government may notwithstanding anythingcontained in this Act, acquire such land underthe provisions of the Land Acquisition Act, 1894.Sub-section (3) envisages that on the landvesting in the State Government under Section 16or 17 of the Land Acquisition Act, 1894, as thecase may be, the relevant plan or scheme shall bedeemed to be suitably varied by reason ofacquisition of the said land. Thus it could beseen that once a notification under Section 4(1)was published and the declaration under Section 6of the Land Acquisition Act came to be published,the public purpose becomes conclusive and for anyvariation without substantial formalities, it isnot necessary that the entire process ofre-publication of the notification under Section28, finding having been recorded under bothSection 31 read with Section 37, requires to befollowed. The view of the High Court, therefore,was not correct.
It is then contended by Mr. U.R. Lalit,that the respondent had not been given theinformation of the notification under Section 9of the Land Acquisition Act. Therefore, theaward is bad in law. We find no force in thecontention. In the absence of notice of failureto serve notice, the award does not becomeinvalid.'
The award having already been held to be valid by theSupreme Court, in the matter arising out of Writ PetitionNo. 4023/1989, in the present writ petition involving thesame award, the award has to be held to be valid and thatis what we have held.
7. Mr. Patil, learned counsel for the petitioners, atthis stage invited our attention to the followingobservations made by the Apex Court in its Judgment dated9.12.1996:
'Due to the fact that immediately after the awardand before the publication of the award, the writpetition came to be filed on September 25, 1980,we direct the appellants to make an applicationwithin six weeks under Section 18(1) of the LandAcquisition Act seeking reference. The LandAcquisition Officer is directed to refer thematter to the competent civil Court for disposalwithin two months according to law.'
8. The learned counsel for the petitioners, thus,submitted that liberty may be granted to the petitionersto make an application under Section 18(1) of the LandAcquisition Act seeking reference to the Civil Court.
9. Mr. Gangal, learned counsel for the respondentNo.5 is not averse to the prayer made by the learnedcounsel for the petitioners in that regard.
10. Consequently, we dispose of the writ petition byfollowing order:
(i) writ petition is dismissed in so far as thechallenge to the acquisition of land in questionis concerned.
(ii) The petitioners are at liberty to make anapplication under Section 18(1) of the LandAcquisition Act seeking reference to the CivilCourt. We observe that if such application ismade within six weeks from today, the concernedLand Acquisition Officer shall consider the samein the light of directions given by the SupremeCourt on in the Order dated 9.12.1996 and passappropriate order accordingly within three monthsfrom the date such applications is filed.
11. No costs.
Certified copy expedited.