Chandulal Motilal Talera and Others Vs. the State of Maharashtra, Though the Secretary, Urban Development Department and Others - Court Judgment

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constitution of india - article 226, maharashtra regional and town planning act 1966 - sections 20, 20(1), (2) and (4), land acquisition act 1894 - sections 4, 5a, 6, 6(1), 17(3) and (3a) and 31(2) -oral judgment:(dr. d.y. chandrachud, j) 1 the petitioners are owners inter alia of gat no. 264 admeasuring 6 hectares and 13 ares at village varsoli, in the taluka of maval in the district of pune. an adjoining plot of land, bearing gat no. 263, is of the ownership of the state government and was leased out to the lonavala municipal council on 1 august 1954. gat no. 263 has been used as a compost depot for nearly sixty years by the municipal council. the only available access to gat no. 263 is through a small approach road admeasuring 13 ares through gat no. 264, which belongs to the petitioners. the road from gat no. 264 was used by the municipal council for access to the land comprised in gat no. 263, where a compost depot has been in existence, continuously for nearly six decades. 2 a petition (wp no. 126 of 2004)was filed before this court under article 226 of the constitution by the petitioners, the grievance being that the municipal council was using gat no. 263 as a dumping ground without securing a change in the user designated under the regional plan and that the access road from gat no. 264 was being utilised without the land comprising of the access road being acquired. a division bench of this court by an order dated 24 june 2008 disposed of the petition in terms of the following order: “1. the learned counsel appearing for respondent no.4-municipal council, after taking instructions from chief officer of respondent no.4-municipal council, who is present in court makes a statement that the municipal council will stop using gat no.263 of village varsoli, taluka maval, dist.pune as a garbage depot/garbage dumping ground and also stop using any land from gat no.264 of village varsoli, taluka maval, dist.pune as approach road to the dumping ground after expiry of the period of 6 months from today unless the respondent no.4-municipal council succeeds in getting approval to the use of gat no.263 of village varsoli described as above as a dumping ground and also acquire the lands from gat no.264 of village varsoli in accordance with law so as to enable the municipal council to use it as approach road to gat no.263. 2. statement accepted. 3. in view of this statement, in our opinion, it will not be proper to pass any orders in the petition considering that land from gat no.263 is being used by municipal council which is the local authority as a dumping ground. 4. rule is discharged. no order as to costs.” 3 the order of the division bench allowed a period of six months to the municipal council, after which it was to stop the use of gat no. 263 as a dumping ground and to cease the use of the access road from gat no. 264 unless: (i) the municipal council obtained approval to the use of gat no. 263 as a dumping ground; and (ii) the municipal council acquired land from gat no. 264 so as to enable it to be used as an approach road to gat no. 263. 4 following the order of the division bench, a notice was issued on 3 december 2008 by the state government in the urban development department for modification of the regional plan under section 20 of the maharashtra regional and town planning act, 1966, so as to modify the use of the land from a residential zone to a use for the purpose of the existing dumping ground. the state government invited objections. the petitioners objected to the proposed modification. a report was submitted on 29 august 2009 by the designated officer and deputy director, town planning, pune division. in his report, the deputy director while recording objections inter alia of the petitioners suggested that the existing designation of the land for residential purposes should not be altered. by a notification dated 2 december, 2009, the state government in the urban development department exercised powers under section 20(4) and sanctioned the modification by which the land bearing gat no. 263 of village varsoli was designated as an existing compost depot, instead and in place of a residential zone. this was subject to the condition that the lonavala municipal council shall scientifically develop the dumping ground and adopt a proper segregation protocol for the garbage. writ petition no. 3466 of 2010 has been filed in order to challenge the notification issued by the state government on 2 december 2009. 5 the second writ petition (wp no. 5705 of 2012)before the court under article 226 seeks to question the legality of: (i) a notification dated 4 february 2010 issued under section 4 of the land acquisition act, 1894; (ii) a declaration dated 1 december 2011 under section 6; and (iii) an order dated 24 november 2011 passed by the commissioner, pune division and a notice dated 18 january 2012 issued by the special land acquisition officer (slao) for taking possession under section 17, applying the urgency clause. 6 we may note that an earlier petition (wp no. 733 of 2012)under article 226 was filed before this court which has been permitted to be withdrawn with liberty to pursue writ petition no. 5705 of 2012, which is a comprehensive petition challenging the legality of the acquisition proceedings. 7 to facilitate an exposition of the submissions, it would be appropriate to deal with both the petitions separately, though in one judgment. both the petitions have been heard together by consent. w.p.no. 3466 of 2010 8 counsel appearing on behalf of the petitioners submits that the notification under section 20(4) is vitiated, since no reasons have been furnished for modifying the designation of the land from a residential zone to the existing compost depot. it has been urged that the officer who was appointed by the state government for hearing objections, had furnished a recommendation against the change in the designation. the grievance of the petitioners is that no hearing was furnished to them by the state government before a final notification was issued. according to them, the state government ought to have allowed them an opportunity of a further hearing, if it intended not to accept the recommendation made by the officer who heard the objections. 9 section 20(1) of the maharashtra regional and town planning act, 1966 empowers the state government to embark upon a revision of a regional plan at any point after the expiry of ten years of the coming into operation of the plan. sub-section 2 of section 20 has a non-obstante provision by which, notwithstanding anything contained in sub-section 1, the state government may at any time after a regional plan has come into operation, make any modification in such plan in the manner thereafter provided, if in the opinion of the state government, such a modification is necessary for the balanced development of the region, for which such plan has been prepared and approved. in sub-section 3, the state government is required to publish a notice in the official gazette announcing its intention to make the modification specified in the notice and to invite objections or suggestions with respect to the modification. sub-section 3 requires a notice to be published in the manner stipulated. under sub-section 4, the state government after considering objections and suggestions in respect of the draft modification under sub-section 2 may approve a modification of the regional plan with such amendments, if any, as it may think fit and has to publish a notification in the official gazette stating that the modification has been approved. 10 in the present case, it is an admitted position that gat no. 263 was used by the lonavala municipal council as a dumping ground for nearly sixty years. in view of the order passed by a division bench on 24 june 2008, the municipal council would have been required to cease the use of the land after the expiry of six months unless in the meantime, a modification in respect of the designation of the land was approved. the state government invited objections to its proposal to amend the regional plan. the report of the deputy director, town planning could, at the highest, be that of a recommending authority and would not bind the state government. the state government before it issues a final notification under section 20 (4), is required to consider suggestions and objections. the notification recites that this process has been duly completed and that the report submitted by the deputy director has been considered. there is no warrant in the law to read a further requirement of the state government furnishing an additional opportunity of being heard. once suggestions and objections have been invited and the objections of persons such as the petitioners in response to the notice issued by the state government under section 20 (3) were considered, it was thereafter for the state government after considering those objections and suggestions to decide whether a modification of the residential plan should be approved. that process was completed. in the circumstances, we do not find any merit in the challenge to the final notification issued by the state government under section 20(4) on 2 december 2009. w.p. no. 5705 of 2012 11 the challenge to the acquisition proceedings in writ petition no. 5705 of 2012 is founded on three grounds, which have been urged before the court at the hearing. firstly, it has been submitted that the publication of the declaration under section 6 was beyond a period of one year of the last date of the publication of the notification under section 4 of the land acquisition act, 1894; secondly, there was no basis in applying the provisions of the urgency clause under section 17 of the land acquisition act, 1894; and thirdly, there was a breach on the part of the state government in depositing 80 percent of the compensation and the payment thereof as mandated by section 17 (3a) of the land acquisition act, 1894. 12 each of the 3 submissions will now be dealt with separately: (i) under proviso (ii) to section 6(1) of the land acquisition act, 1894, no declaration in respect of any particular land covered by a notification under section 4(1) shall be made after the expiry of one year from the date of the publication of the notification. under sub-section 1 of section 4, a notification to the effect that land is needed or likely to be needed for a public purpose is required to be published in (i) the official gazette; (ii) two daily newspapers circulating in that locality, of which atleast one shall be in the regional language. besides this, the collector is required to cause a public notice of the substance of the notification to be given in a convenient place in the locality. the last of the dates of such publication and the giving of such public notice is referred to as the date of the publication of the notification. 13 from the affidavit in reply that was filed by the special land acquisition officer in writ petition no. 733 of 2012 (which has been read by consent as an affidavit in these proceedings), the following dates are not in dispute: (i) on 18 february 2010 a notification under section 4 was published in the government gazette; (ii) the notification was published in a marathi newspaper on 30 march 2010 and in an english newspaper on 31 march 2010; (iii) on 26 october 2010 a notification was published on the notice board in the office of the tahasildar, maval; (iv) on 7 december 2010 the notification was published on the notice board in the office of the talathi, varsoli; (v) the declaration under section 6 was published in the government gazette on 1 december, 2011. the publication on 7 december 2010 (iv above) was the public notice of the substance of the notification in a convenient place in the locality. 14 the provision contained in section 4 is clear. the date of the publication of the notification under section 4 is to be the last date of its publication in the official gazette or as the case may be, in the two daily newspapers and the giving of a public notice of a substance of the notification in the locality. a public notice in the locality was published on 7 december 2010. the declaration under section 6 which was issued on 1 december 2011 was within a period of one year. 15 counsel appearing on behalf of the petitioners however, relied upon a decision of the supreme court in devenderkumar tyagi v. state of uttar pradesh (2011) 9 scc 164). in that case, a notification under section 4 was issued on 3 july 2006 and was published in two daily newspapers in hindi on the same day. subsequently, an english version of the notification was published in two daily newspapers on 24 january 2007. a notification under section 6 was issued on 18 december 2007. the submission before the supreme court was that the notification under section 6 was issued beyond a period of one year of the date of the publication of the notification under section 4. the state urged that the last date of the publication of the notification under section 4 would have to be the date on which an english version of the notification came to be published. that submission, which was urged on behalf of the state, was rejected. the supreme court held that the notification under section 4 was published in two daily newspapers in hindi on 4 july 2006 having circulation in the locality where the land is situated and the people in the locality were conversant with the language. thus, the supreme court held that the publication of the notification in two newspapers having circulation in the locality where the land is situated and where people are well conversant with the language amounts to ample compliance with the requirement of publication under section 4(1) and the subsequent publication of an english translation of the notification in two newspapers was unnecessary and would not extend the period of limitation envisaged in proviso (ii) to section 6(1). the judgment of the supreme court would indicate that the issue in that case was not in relation to the date of the publication of a notice in the locality, containing the substance of the notification. the facts as narrated earlier are clearly distinguishable, in that, the publication under section 4 was held to be completed once the notification was published in the local newspapers in hindi; the subsequent publication of an english translation being regarded as unnecessary. in the present case, having regard to the clear language of the provisions contained in section 4(1), the date of the publication of the notification under section 4 would have to be treated as the date on which the publication of the notification in the locality took place. on behalf of the petitioners it has however, been urged that the acquisition of 13 ares of the strip of land which provides access to gat no. 263 affects only the petitioners and the petitioners as a matter of fact were aware of the notification and objected to the proposed acquisition. the period of limitation cannot stand altered depending upon the individual factual situation. the period of one year has to be construed with reference to the date of publication of the notification under section 4. the statute defines that date as the last of the dates of the publication of the notification or the giving of a public notice in the locality. the publication of the declaration under section 6 was within a period of one year of the date of the publication of the notification under section 4. (ii) in support of the submission that there was no warrant for the application of the urgency clause under section 17, counsel submitted that the order of the division bench dated 24 june 2008 under which the municipal council was required to stop the use of the land as a dumping ground and to desist from using the access road from the adjoining land of the petitioners was to take effect after six months unless in the meantime the land was acquired and a modification of the regional plan was effected. counsel states that the notification under section 4 was issued thereafter on 23 november 2010 while that under section 6 was issued on 1 december 2011. in these circumstances, it was submitted that there was no warrant for invoking the urgency clause and reliance was placed on the observations in devenderkumar tyagi (supra). 16 in devenderkumar tyagi (supra), the supreme court followed the earlier decision in radhyshyam v. state of u.p. (2011) 5 scc 553)while enunciating the underlying principles, the supreme court held that: (i) a public purpose, however, laudable would not entitle the state to apply and invoke urgency provisions. the state can invoke urgency provisions only in the case of a real urgency; (ii) even if the urgency clause is to be applied, that would not by itself justify dispensing with the mandate of section 5a. section 17(4), confers extraordinary powers. before excluding the application of section 5a, the authority must be fully satisfied that the time of a few weeks or months likely to be taken in conducting an enquiry under section 5a will in all probability frustrate the public purpose for which the land is proposed to be acquired; (iii) the satisfaction of the government on the issue of urgency is subjective, but it is a condition precedent to the exercise of power under section 17(1) and can be challenged on the ground of an absence of a public purpose, mala fides or non application of mind by the authorities. 17 in the present case the admitted position is that the land comprising of gat no. 263 had been used continuously as dumping ground for nearly sixty years by the municipal council. as a result of the order of the division bench dated 24 june 2008, the municipal council was required to initiate steps for the acquisition of the access road to the land, which is situated on the adjoining property, gat no. 264 of the petitioners. the affidavit in reply of the municipal council lists out the steps taken by the council. the municipal council passed a resolution on 11 august 2006 to initiate land acquisition proceedings and to submit a proposal to the district collector for acquisition. a proposal was forwarded to the collector, pune on 29 august 2006. on 1 august 2008 after the order of the division bench, the municipal council rectified its original proposal in pursuance of certain queries raised by the deputy collector. on 6 august 2008, the council submitted the required certificates and agreement to the office of the collector. on 3 november 2008, the tilr was requested to carry out measurement and demarcation at site. on 17 november 2008, a letter was addressed to the tilr for joint measurement of the land. on 8 december 2008, a letter was received by the tilr to the municipal council regarding measurement and demarcation. on 4 march 2009, the slao raised certain queries in regard to the measurement in a letter to the tilr. these were dealt with by the tilr on 14 august 2009. on 3 december 2009, a letter was received by the municipal council from the slao in regard to the deposit of the compensation which amount was deposited on 24 december 2009. on 18 february 2010, a notification under section 4 was published in the official gazette. the municipal council moved the divisional commissioner with a request on 7 june 2011 to apply the urgency clause for the purpose of taking over possession of the land comprised in the approach road through gat no. 264. on 10 december 2011, the slao called upon the municipal council to deposit an additional amount towards compensation so as to make up a total amount of 80% of the total compensation. this amount was deposited on 12 january 2012. on 24 january 2012 possession was handed over of an area admeasuring 13 ares to the municipal council for the purpose of the approach road. 18 in our view, there is merit in the contention of the municipal council that in the present case, urgency is writ large on the facts of the case. the use of the land comprising of gat no. 263 as dumping ground depended upon the acquisition of the access road through gat no. 264. the reference to the relevant dates in the previous paragraph would indicate that the municipal council took all necessary steps from its side to ensure that the acquisition was initiated by and pursued by the state government. but for the handing over of the approach road, the municipal council would have been prevented from obtaining access to the municipal dumping ground which was in continuous use for several decades. the municipal council has stated on affidavit that the want of an approach road for even a single day would result in serious public inconvenience and would have a serious impact on the sanitary conditions in the area of the council. in the facts of the present case, recourse to the urgency clause was not taken as a matter of course. the municipal council on 7 june 2011 requested the divisional commissioner, pune division to take possession of the above land, on the basis of which the urgency clause was applied in accordance with law. the unavailability of the only available place for disposal of solid waste in the area of the municipal council would be liable to cause unsanitary conditions. this would have serious prejudicial effect upon public health. hence, the invocation of the urgency clause was lawful. 19 moreover, a contempt petition (cp no. 103 of 2009)was filed by the petitioners, which came up before a learned single judge on 23 december 2011. at that stage, the court was informed on behalf of the municipal council that the urgency clause was applied and that shortly possession of the land would be taken over under the land acquisition act, 1894. a statement was made before the court that until possession is taken over by the state government of the portion of gat no. 264, the municipal council would abide by the judgment and order of the division bench dated 24 june 2008. the municipal council, it must be noted, had moved a division bench in the civil application (ca no. 646 of 2010 in wp no. 126 of 2004)for extension of the period of six months granted by the order dated 24 june 2008 for stopping the use of the dumping ground. by an order dated 30 april 2010, the division bench declined to grant an extension of time. in this situation and having regard to the facts stated earlier, recourse to the urgency clause was warranted in order to ensure that the amenity of a dumping ground which was in continuous use for several decades could continue to be utilized. any disruption of the facility would have been liable to cause serious consequences on the conditions of sanitation in the area of the municipal council. (iii) the next submission which falls for determination is whether there was compliance with the mandatory requirement contained in section 17(3a) of the land acquisition act, 1894. the provision postulates that before taking possession of any land under sub-section 1 or sub-section 2 of section 17 the collector shall without prejudice to the provisions of sub-section 3 (a) tender payment of 80 percent of the compensation for such land as estimated by him to the persons interested in or entitled thereto; (b) pay to them unless prevented by any contingency mentioned in section 31(2). in the present case, a notice of possession was issued on 18 january 2012 and possession, it was stated, would be taken over on 24 january 2012. compliance with section 17(3a) was required to be effected before taking possession of the land. on 3 december 2009, the slao had called upon the municipal council to deposit 50 percent of the compensation computed at rs. 15.47 lakhs. this amount was deposited with the slao by the council on 24 december 2009. on 10 january 2012, the slao called upon the municipal council to deposit a balance of rs. 16.31 lakhs so as to make up a total deposit of 80 percent of the total compensation amounting to a total of rs. 31.78 lakhs. the municipal council deposited the balance with the collector on 12 january 2012. consequently, an amount representing 80 percent of the compensation had been deposited by the municipal council with the collector by 12 january 2012. this was before the date prescribed in the notice of 8 january 2012 for taking over of possession on 24 january 2012 and the notice expressly informed the petitioners that advance compensation representing 80 percent of the total compensation would be paid. possession was taken over on 24 january 2012 under a panchnama. the petitioners were not present at the time and place for taking of possession. these facts would indicate that there was compliance on the part of the municipal council with the provisions of section 17(3a). 20 finally, it would be necessary to note that in the present case an enquiry under section 5a was conducted. the petitioners submitted their objections in the course of the enquiry. those objections were dealt with in the report under section 5a. 21 for these reasons, we do not find any illegality in the action that has been adopted by the respondents. no case for interference under article 226 of the constitution of india has been made out. accordingly, both the writ petitions are dismissed. 22 having due regard to the fact that – (i) a notification has been issued by the state government under section 20(4) of the mrtp act, 1966 modifying the regional plan after following due process of law ; (ii) the access to gat no. 263 has been acquired by following land acquisition proceedings pertaining to an area of 13 ares of gat no. 264; and (iii) the use of the access through gat no. 264 is crucial to the continued use of the dumping ground which is the only available municipal dumping ground within the limits of the municipal council of lonavala, we do not think it proper to continue the operation of the ad-interim order, that was passed by the division bench in the earlier writ petition8 on 24 january 2012.