Raghunath Abajirao Shinde (Lt. Co.) and ors. Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
property - land acquisition - land acquisition act, 1894 - land acquired for public purposes in 1970 - compensation paid and acquisition proceedings completed - land vested in government free from all encumbrances - mere fact that purpose for which land was originally acquired was over does not give nay right to petitioner to claim back land - government resolution dated 10.10.1973 also of no assistance to petitioner as the same was applicable only to agricultural lands - claims suffered from laches and inordinate unexplained delay - writ petition dismissed. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act.r.m. lodha, j.1. the petitioners, including the persons whom they have been representing as per list in annexure a annexed to the writ petition, were owners of different pieces of agricultural lands situated in village pedhambe, taluka-chiplun, district-ratnagiri. by different notifications issued under section 4 of land acquisition act, 1894 between the years 1967 and 1970, the petitioners' lands admeasuring about 100 acres were sought to be acquired for the public purpose, namely, koyna hydro electric project, stage iii works. thereafter, notifications were issued under section 6, compensation paid and possession taken between years 1968 and 1970. it is petitioners' case that the state of maharashtra, that is respondent no. 1, declared about 65 to 67 acres of land out of village pedhambe as surplus and not required for public purposes, namely koyna hydro electric project stage iii works. the petitioners came to know that the excess lands were allotted to konkan development corporation vide resolution dated 19-8-1976. the konkan development corporation in turn allotted 57 acres of land to parshuram sugar factory who is said to have leased out 27 acres of land to mandar education society on a nominal rent of rs. 1001/- per annum. the petitioners have averred that as per the policy vide government resolution dated 10-10-1973. respondent no. 1, that is state of maharashtra, ought to have ensured that the acquired lands were to be used for the purpose for which they were acquired within a reasonable period of three years from the date of taking possession thereof and if the said lands were not utilised for the said purpose, the concerned department ought to have considered the feasibility of utilising the said land for other public purpose within the same period and if the concerned department did not find utilisation of the land for any other public purpose, the land ought to have been returned to the petitioners. the petitioners submitted that to their knowledge vide government resolution dated 19-8-1976, the irrigation department relinquished the surplus lands of village pedhambe in favour of konkan development corporation (respondent no. 4). the petitioners have submitted that they are entitled to return of their lands under government resolution of 10-10-1973 and the action on the part of respondent no. 1 in handing over the unutilised surplus land to konkan development corporation was without authority of law and further transfer of 57 acres of land by konkan development corporation to parshuram sahakari sakhar karkhana ltd. (respondent no. 3) and transfer of 27 acres by parshuram sahakari sakhar karkhana ltd. to mandar education society is illegal.2. respondent no. 1 has denied the petitioners' claim by filing reply affidavit of c.h. parshuram, executive engineer, koyna dam, main division. it is submitted that land acquisition proceedings have been carried out in respect of lands in question in accordance with law and the said lands vested in the state free from all encumbrances after adequate compensation was paid to the owners. in reply affidavit, it is submitted that the lands in question have been utilised for the purposes for which they were acquired and the petitioners are not entitled to restoration of the land. setting out in details in the reply filed on behalf of respondent no. 1, it is submitted that different pieces of land situated in village pedhambe were acquired for koyna hydro electric project stage iii works under the land acquisition act, 1894. the acquired land was also used for construction of residential colony (bharada), roads, etc. and converted into non-agricultural use. after completion of koyna hydro electric project stage iii works, the purpose of the residential colony was over and after more than 10 years of use, the land alongwith roads, structures, etc. was disposed of and transferred to development corporation of konkan limited as per government resolution dated 19-3-1974 since the land was converted into non-agricultural use. it is submitted that the acquired land having been converted into non-agricultural use before handing over the land to the development corporation of konkan limited, the provisions of government resolution dated 10-10-1973 were not applicable. it is specifically stated in the reply affidavit that the acquired land was not declared as surplus and it was used for public purpose within the period of three years and converted into non-agricultural use by constructing roads, buildings, etc. with reference to the case of shri mankar referred to in paragraph 23 of writ petition, it is submitted in the reply affidavit by respondent no. 1 that the acquired land of shri mankar was agricultural and not used for public purpose for which it was acquired and, therefore, returned to the owner. no rejoinder has been filed by the petitioners disputing the case set up by respondent no. 1 in the reply affidavit that the acquired land was used for public purpose, that is koyna hydro electric project stage iii works, and that residential colony, roads etc. were constructed and was converted into non-agricultural use and after completion of the koyna hydro electric project stage iii works, the purpose of colony was over and, thereafter, transferred to development corporation of konkan ltd. as per the government resolution dated 19-8-1974.3. from the available material and the pleadings, it is apparent that the petitioners' lands were acquired way back in the years 1967 to 1970 after following the procedure contemplated under land acquisition act. the acquisition proceedings were complete in all respects by the year 1970, adequate compensation was paid to the petitioners and possession taken thereof. there seems to be no doubt and it is not even seriously disputed that the lands in question stood vested in the state free from all encumbrances by the year 1970. in other words, the petitioners were divested of the lands in question after completion of the acquisition proceedings in accordance with law in the year 1970. as noted above, it appears that part of the land was used for koyna hydro electric project stage iii works, that is tail race tunnel, switch yard and roads and residential colony. after the construction of the tail race tunnel and completion of the project, the purpose of residential colony was over and, therefore, the state government decided to transfer the said land. by that time, the land stood converted to non-agricultural use and, therefore, as per its resolution dated 19-8-1974, the state government transferred the remaining land to development corporation of konkan limited. the transfer to development corporation of konkan limited took place in the year 1976. there also appears to be no dispute that in the year 1976-77, the development corporation of konkan limited transferred 57 acres of land to parshuram sahakari sakhar karkhana ltd. (respondent no. 3) and the said respondent no. 3 in the year 1984, appears to have leased out 27 acres of land to mandar education society (respondent no. 5). the view of the events that had taken place, which are noted above, whereby the land was transferred to the development corporation of konkan limited in the year 1976 after completion of the koyna hydro electric project stage iii works for which the land was acquired and further transfer of 57 acres of land by development corporation of konkan limited to parshuram sahakari sakhar karkhana ltd. and out of that transfer of 27 acres of land by way of lease to mandar education society in the year 1984, the question of restoration of land to the petitioners cannot arise. the claim made by the petitioners apparently is misconceived. besides that upon conversion of the agricultural land to non-agricultural land much before the year 1976, the resolution dated 10-10-1973 has no application. on the face of the resolution dated 10-10-1973, it would be clear that the instructions of the policy mentioned in the government resolution dated 10-10-1973 are applicable only to the disposal of the agricultural lands which were acquired and found surplus or not utilised for the purposes for which they were acquired.4. the claim also suffers from gross laches and inordinate unexplained delay. as already noted above, the acquisition of the land in question was complete in all respects by the year 1970 and the land vested in the state government free from all encumbrances by that time and adequate compensation was received by the petitioners. the land was used for koyna hydro electric project stage iii works for which it was acquired and after the said project was complete in the year 1976, the excess land was transferred to development corporation of konkan limited. the petitioners did not raise any grievance at that time or immediately thereafter. in the year 1976-77 itself, out of the land allotted to development corporation of konkan limited, 57 acres of land was transferred to parshuram sahakari karkhana limited. no grievance was raised by the petitioners in that regard immediately thereafter. in the year 1984, out of the lands transferred to parshuram sahakari sakhar karkhana ltd., 27 acres of land was transferred to mandar education society. even that action was not challenged immediately thereafter. writ petition was filed only in the year 1993 and the action of the state government in transferring the land to konkan development corporation in the year 1976, transferring 57 acres of land by konkan development corporation to parshuram sahakari sakhar karkhana ltd. in the year 1976-77 and creation of lease in respect of 27 acres of land by parshuram sahakari sakhar karkhana ltd. to mandar education society in 1984 are now sought to be challenged by writ petition filed the year 1993, which cannot and in any case does not deserve to be entertained after such a long lapse of time.5. besides that in respect of the government resolution dated 10-10-1973 upon which the petitioners claim restoration of the unutilised land, the division bench of this court in vishnu namdeo kumar & ors. v. state of maharashtra & ors., : (2003)2bomlr88 through one of us (shri r.m. lodha, j.), it was held that in view of the legal position laid down by the apex court, the government resolution dated 10-10-1973 cannot be enforced. the division bench in vishnu (supra) considered the judgments of the apex court in gulam mustafa v. state of maharashtra, : [1976]1scr875 ; state of kerala & ors. v. m. bhaskaran pillai, : air1997sc2703 ; netal bag and ors. v. the state of bengal, : air2000sc3313 ; municipal council, ahmednagar & anr. v. shah hyder beig & ors., : air2000sc671 ; savitri devi v. state of haryana & ors. a.i.r. 1976 s.c. 729 and tulsi co-operative housing society v. state of andhra pradesh, : air1999sc3667 and held that an expropriated owner cannot insist on restoration of the land even if the land has not been utilised for the purpose for which it was acquired or for other purpose and if the land has not at all been used, the land of the government should be sold through public auction and not to the expropriated owner. there appears to be no doubt about the legal position that once the land has been acquired and acquisition has become final, the expropriated owner ceases to have any right, title and interest in the property and pre-existing right, title and interest held by the erstwhile owner ceases to exist and is divested. once the land is vested in the state free from all encumbrances, obviously such land of the government if not used for the purposes for which the land was acquired or for any other public purpose or has not at all been used, should be sold through public auction and the expropriated owner cannot have any right to restoration of such land.6. mr. apte, learned senior counsel for the petitioners, submitted that the judgment of this court is principally based on the judgment of the apex court in state of kerala v. m. bhaskaran pillai (supra) but the said judgment of the apex court in m. bhaskaran pillai (supra) was based on the provisions contained in the kerala government land assignment act, 1960. according to the learned senior counsel, the government resolution dated 10-10-1973 reflects the government policy about the disposal of the land covered by that resolution and that exercise of power is within the domain of the executive and cannot be faulted. we are not persuaded by the submission of the learned senior counsel since the legal position is duly explained already by the division bench of this court in vishnu (supra) and in the light of the legal position as noted by the division bench of this court in the case of vishnu (supra), the government resolution dated 10-10-1973 was held not enforceable by issuance of writ or in exercise of jurisdiction under article 226 of the constitution of india.7. writ petition for all these reasons is liable to be dismissed and is dismissed accordingly.8. rule is discharged. no costs.