Harakchand Misirimal Solanki v. The Collector & Ors.

6. Mr. Nitin Kareer, Divisional Commissioner, Pune Division, Pune, having office of Divisional Commissioner, Council ) ) ) ) Hall, Pune-1. ) Respondents WRIT PETITION No. 1227 OF 2008 Mr. Ajay Arun Shirodkar, ) Age : 42 years, Occu.- Service, Residing ) at 42, Saikamal Residency, Ramnagar ) Colony, NDA Road, Bawdhan Pune 21 ) Petitioner Vs.

1. State of Maharashtra )

2. The District Collector, Pune )

3. The Special Land Acquisition Officer) No. 15, Pune. )

4. Pune Municipal Corporation, ) Shivajinagar, Pune 411 005. ) Respondents WRIT PETITION No. 7736 OF 2007

1. Abhay Prithviraj Bothra ) Age adult, Occupation-Business )

2. Sanjay Prithviraj Bothra, ) Age-adult, Occupation- Business ) Both are residing at A2/2, Rambaug - 9 - Colony, Navi Peth, Pune-411 030 ) Petitioners Vs.

1. The Collector, ) Collector Office, Land Acquisition ) Branch Pune. )

2. Special Land Acquisition Office ) No. 15, Pune. )

3. Pune Municipal Corporation ) Through Commissioner, P.M.C. Of ) building, Pune. )

4. Assistant Commissioner (Special) ) Land Acquisition and Management) Pune Municipal Corporation, Pune)

5. The State of Maharashtra )

6. Divisional Commissioner, ) Pune Division, Office of Divisional) Commissioner, Vidhan Bhavan, ) Pune. ) Respondents Mr. A. V. Anturkar, a/w Sugandh Deshmukh for the petitioner in W.P. Nos. 3648/2007, 1173/2008, 1227/2008 for the petitioner. Mr. P.J. Thorat for the petitioner in W.P. No. 1149/2008. Ms. Anita Agrawal, for the petitioner in W.P. No. 1154/2008. Mr. C.M. Korde, Sr. Advocate a/w Madhav Jamdar, for the petitioner in W.P. Nos. 1644/2008 & 1648/2008. Mr. S. S. Kulkarni for the petitioner in W.P. No. 1296/2008 and 7736 /

2007. Mr. N. P. Deshpande, AGP for the Respondent State in all the Writ Petitions. Mr. R. G. Ketkar, for the Respondent Pune Municipal Corporation in all the - 10 - Writ Petitions. CORAM : S. B. MHASE, & A. A. KUMBHAKONI, JJ. DATE OF RESERVING THE JUDGMENT : JUNE 12, 2008. DATE OF PRONOUNCING THE JUDGMENT : OCTOBER 24, 2008.

1. About 114 years after the enactment of a law which is very commonly enforced and consequently very often analysed-reanalysed as also interpreted-reinterpreted by various Courts in the country, including the Supreme Court, in this group of matters, we have an occasion, for the first time since its enactment, to interpret the provisions of section 7 of the Land Acquisition Act, 1884 (hereinafter referred to as the “said Act”) as also pronounce upon the true and correct scope thereof. In the submission of the learned counsels appearing on behalf of all the parties in this group of matters, neither any High Court nor the Supreme Court previously had an occasion to deal with such an issue.

2. The respondent herein, the Municipal Corporation of the city of Pune (hereinafter referred as the “said Corporation” for the sake of brevity) established under the Bombay Provincial Municipal Corporation Act 1949 (Hereinafter referred to as ‘the BPMC Act’ for the sake of brevity) is said to have decided to set up what is titled as “Forest Garden” (in local language - 11 - Marathi - “ou&m|ku”), comprising of 50 hectares of land, situate at Pachgaon, Mauze Parvati Pune. An award under section 11 of the said Act has been declared, for acquiring the lands on which such “Forest Garden” is to be set up. This group of petition challenges the acquisition proceedings and in turn the award so made on 31st May, 2008 for acquiring survey Nos. 67 to 73.

3. Some of the Writ Petitions from this Group have been filed before declaration of the award, whereas some have been filed after the declaration of the award. In some petitions, admittedly possession is already obtained by the Land Acquisition Officers and has already been handed over to the said Corporation, whereas in some cases the possession is not so obtained, particularly in view of the interim orders passed by this Court preventing dispossession of such petitioners from the acquired sites. The factual details in this regard we will give little later. Hereunder we are setting out as usual first the chronology of events with some particulars. One of the defenses of the respondents to the Writ Petitions is that these petitions are filed with gross delay and latches and that on that ground itself, the same are liable to be dismissed. 1997 :- The revised development plan for the area of which the land under acquisition forms part, was brought into the force. In this development plan prepared under the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as the “MRTP Act”), the land under - 12 - acquisition is shown in the “Hill Top-Hill Slope” zone. Consequently in the Development Control Regulations (DCRs) only restricted development has been permitted in this zone. 5 th July, 2000 :- The Garden-Superintendent of the said Corporation sent a letter to the Assistant Municipal Commissioner (Special) of the said Corporation, requesting that the lands set out in this letter be acquired for developing “Forest Gardens” at three places in the city of Pune. One of the locations set out is “Pachgaon- Parvati” and the lands therefrom admeasuring 50 hectares are described as bearing Survey Nos. 67 to 73 (which includes all the land in issue in this group of matters), excluding area of Shahu College, area of Forest Department and area of temple. The other two places are :- (i)About 110 to 125 acres situated at Parvati Hill. (ii)About 100 acres from Chatushrungi Hill. 2 nd February, 2002 : The Chief Garden Superintendent of the said Corporation issued a follow up letter, reiterating request made by the aforesaid letter dated 5th July, 2000. 15 th June, 2002 : The Dy. Municipal Commissioner (Special) sent a letter to the Commissioner of the said Corporation requesting to sign a letter enclosed with it. This letter to be signed was a letter to be sent for obtaining approval of the Standing Committee of the said Corporation, for acquiring the aforesaid 50 hectors land from “Pachgaon-Parvati” in accordance with the said Act. It further states that actual acquisition will be carried out in accordance with the availability of finance. 6 th August, 2002 : The Commissioner of the said Corporation requested the Secretary of the said Corporation to obtain sanction of the Standing Committee to acquire aforesaid 50 hectors lands, in accordance with the said Act, for the purpose of “Forest Garden”. 6 th August, 2002 : The Standing Committee of the Corporation - 13 - passed a resolution bearing No. 638, approving a proposal to acquire aforesaid 50 hectors of land for “Forest-Garden”. 12 th September, 2002 : A proposal was accordingly made to the Collector. 30 th January, 2003 : The Assistant Municipal Commissioner of the said Corporation applied to the District Collector, Pune for acquiring the lands under the said Act for “Forest-Garden”. 20 th February, 2003 : The Collector sanctioned the said proposal and forwarded it to the Special Land Acquisition Officer (15) Pune for further action. 20 th February, 2004 : The Assistant Director of Town Planning issued no objection letter for such acquisition. 30 th September, 2004 : An appropriate notification under section 4 of the said Act, published in the official gazette. 4 th October, 2004 : The notification under section 4 was published in the local daily newspapers. Notices under section 4(1) of the said Act were also served upon all the interested persons. 28 th December, 2004 : The said notification published on the notice board of the office of Tahsildar, Pune. 29 th December, 2004 : The said notification was published on site. 20 th December, 2004 : The Commissioner issued declaration under section 6 of the said Act. 24 th December, 2005 :The said notification under section 6 published in the local daily newspapers. 26 th December, 2005 :The declaration issued under section 6, dated 20th December, 2005 published in the Official Gazette. 16 th January, 2006 :Notices were issued under section 9 of the said Act to the interested persons, fixing the dates of hearing as 30th - 14 - January, 1st February, 2nd February, 2006, etc. on which dates, the petitioners claimed to have sought for adjournments. 2 nd February, 2006 : The declaration issued under section 6 of the said Act was published at the site and also on the notice boards of Talathi office, Tahsil office, city survey office and the office of acquiring body. 29 th January, 2008 : The Govt. of Maharashtra accorded approval to the proposed award, submitted to it by the Special Land Acquisition Officer. 31 st January, 2008 : Award under section 11 was finally declared under the said Act. On the same day, notices were issued to the petitioners, intimating that possession of the acquired lands will be taken on 20th February, 2005. 19 th February, 2005 : Two petitioners ( i.e. Writ Petition Nos. 1644 and1648 of 2008) submitted letters with the Land Acquisition Officer to the effect that without prejudice to the following, they were ready to hand over the actual possession of their acquired lands. a) To claim that the acquisition proceedings be quashed andthe possession be restored; b) To apply for enhanced compensation; c) To seek transferable development rights (TDR), in lieu of the compensation. 20 th February, 2008 :- In the aforesaid cases only accordingly, the possession of acquired lands was obtained. However in some of the cases, as detailed hereunder separately, actual possession of the acquired land was not obtained.

4. The Writ Petitions from this group have been filed on the - 15 - following dates- i) 2 nd May 2007: ii) 4 th October 2007: iii) 18 th February, 2008 W. P. No. 3648 of 2007. W. P. No. 7736 of 2007. : W. P. Nos. 1149/08, 1154/08, 1227/08, 1173/08. ii) 21 ii) 1 st st February, 2008 March, 2008 : W.P.Nos.1296/08, : Writ Petition Nos. 1644/08, 1648/08. Thus it is clear that two Writ Petitions have been filed before the declaration of the award dated 31st January 2008 and the balance Petition have been filed within a very short time thereafter.

5. When the aforesaid group of matters was placed before us for final hearing, it was heard for considerable length of time, on 2nd April, 21st April, 22nd April and 23rd April, 2008. During the course of hearing when the notification issued under section 6 was being read out and submissions in that regard were being made by the parties, we noticed that it contained a sentence to the effect - “R;kl Hkwlaiknu vf/kfu;e dye 7 [kkyh laiknuklkBh vkns'k ?ks.;klkBhgh funsZf'kr dj.;kr ;sr vkgs++ +” The appropriate translation of this sentence would be thus : “He is also directed to take order for acquisition under section 7 of the Land Acquisition Act.” (emphasis ours) We therefore obviously tried to find out from the record and the parties as to whether any such order was in fact “taken” or not and if so taken, the particulars as also a copy thereof. However it was conceded by - 16 - the Respondents that no such order was ever taken till then.

6. In this background, the petitioners sought leave, which have been granted by us, to amend the writ petitions, for raising issues relating to non-compliance with the directions contained in section 7 of the said Act, in as much as the respondents admitted during the course of hearing through their learned counsel that the Collector (in this case the Special Land Acquisition Officer (15), Pune) had not taken any such order for the acquisition of the land, specifically in terms of the aforesaid directions contained in the notification issued under section 6 of the said Act. On behalf of the State, when these petitions were pending as part-heard, following steps have been taken, in addition to filing replies to the amended portions of the petition. 25 th April, 2008 : In accordance with the communication sent by the learned AGP appearing in this group on behalf of the State, the Special Land Acquisition Officer (15) Pune issued letter to the Divisional Commissioner Pune, seeking orders contemplated by section 7 of the said Act with retrospective effective. . On the same date, the Collector also issued letter to the Dy. Commissioner (Entertainment Tax) recommending that the proposal so made by the Special Land Acquisition Officer be granted. . On the same date, the Commissioner issued order contemplated by section 7 of the said Act, directing the Special Land Acquisition Officer - 17 - (15) Pune to take further action for acquisition of the lands. By this communication, the Commissioner also granted post facto sanction and that too with retrospective effect, to everything that was done by that time from 20th December, 2005, by the Land Acquisition Officer (15) Pune for the acquisition of the lands in issue. 28 th December, 2008 : Copy of the said order was communicated to the Special Land Acquisition Officer. 30 th April, 2008 : The learned AGP produced copies of these documents evidencing these developments that had occurred. 2 nd May, 2008 : The petitioners again amended the writ petitions and thereby impugned the aforesaid actions that were taken by the Respondents to get over the objections that were raised by the petitioners in regard to the non-compliance with procedure contemplated by section 7 of the said Act. . The respondents filed affidavits in reply to these amended portions of the petitions, justifying their actions.

7. These matters have been argued at length by the learned counsels appearing on behalf of the various petitioners and the respondents. Instead of setting out herein separately arguments advanced on behalf of each of the petitioners and replies given thereto by each of the respondents, for the better understanding thereof, we will like to refer to these arguments point-wise or issue-wise and deal with the same at appropriate places. These arguments have lead us to decide the following issues. - 18 - a) Whether proceedings for acquisition of land for the purpose of “Forest Garden” can be initiated by the Commissioner of a Municipal Corporation with the mere approval of the Standing Committee of such Corporation or is it mandatory that the General Body of such Corporation should resolve accordingly, in view of the provisions of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the “BPMC Act” for the sake of brevity) ? b) What is the true and correct scope of provisions of Section 7 of the Land Acquisition Act 1894 (hereafter referred to as ‘the said Act’ for the sake of brevity) ? c) Whether the award is declared in breach of provisions of Section 5-A of the said Act ? d) Whether action under Section 9 of the said Act can be initiated before completion of all the steps to be taken under Section 6 of the said Act ? e) When does the time start to run under Section 11- A of the said Act for making an award under Section 11 of the said Act ? AND Whether the award declared on 31st January 2008, in view of the facts and circumstances of the present case is beyond time, as contemplated by provisions of Section 11A of the said Act and as to whether the entire proceedings for acquisition of the lands in issue have lapsed ? f) Whether the acquisition proceedings are unsustainable on the ground that the same are - 19 - initiated without complying with the provisions of Section 128 of the Mahrashtra Regional and Town Planning Act 1960 Act ? g) Whether the Land Acquisition Officer (15) Pune was not legally competent to conduct the land acquisition proceedings in issue in the present cases ? h) Whether those Writ Petitions that are filed after the declaration of award under Section 11 of the said Act are not maintainable ? i) Whether the High Court cannot interfere with the acquisition proceedings once an award is declared under Section 11 of the said Act ? j) Whether the Writ Petitions are liable to be dismissed merely on the ground of delay and ? latches k) Whether these Writ Petitions are liable to be dismissed solely on the ground that some Petition(s) filed by some other holders other lands was dismissed earlier by Bench of this Court ? Writ of the some the Division General observations and clarifications

8. At the outset, we must refer to an important, crucial and admitted fact which has been stated in the affidavit-in-reply filed by the Officer on special duty, Land Acquisition Department of the said Corporation, in Writ Petition No. 1296 of 2008 (page 99). The paragraph (XI) of this affidavit states that total land sought to be acquired, admeasures - 20 -

43.93 Hectares and that possession of land admeasuring 41.13 Hectares has already been taken and in turn handed over to the said Corporation. It is further stated that the total area of the land under litigation in this group of matters is hardly 2.80 Hectares i.e. About 6.37 % of the total land under acquisition. These factual assertions are not controverted by any of the petitioners and therefore we take these facts as admitted facts. . It is thus, clear that the present group of matters does not cover the entire land acquired by the acquisition proceedings in issue. Therefore, we make it abundantly clear at the threshold of this judgment itself that the directions that will be issued hereunder will not govern such lands which though are covered by the award dated 31st January, 2008, are not the subject matter of any of the petitions that fall in the present group of matters. In other words this judgement and the consequent directions issued hereunder will apply only and only to such lands which are the subject matter of the present group of Petitions. . In this regard we may refer to the following judgments of the Supreme Court : - (iii)Abhay Ram Vs. Union of India (1997) 5 SCC 421. (iv)Delhi Administration Vs. Gurdip Singh Uban and Ors (1997) 7 SCC 44. . In the light of the observations made in these judgments, we make it clear that any observation made, conclusions drawn and consequent - 21 - directions issued herein/hereby will not amount to re-opening of the entire acquisition proceedings that have resulted into the declaration of award dated 31st January 2008 in issue in the present group of matters and that this judgment will apply only and only to the lands that are subject matter of the present group of Petitions. The reference hereunder made as “the lands under acquisition” therefore should be considered as “lands covered only by the present group of Petitions” and no “the entire land that has been acquired by and under the aforesaid award dated 31st January 2008”. The acquisition in issue is not supported by a decision i.e. by a resolution passed by the General Body of the said Corporation

9. The petitioners have impugned the entire acquisition in issue on the ground that the impugned acquisition was initiated only on the basis of decision of the Commissioner of the said Corporation backed by the approval of the Standing Committee of the said Corporation and that the General Body of the said Corporation has not taken any decision in that regard, one way or the other. It is contended by the petitioners that the General Body of the said Corporation under Section 63(1) or 66(10) of the said Act has to take decision firstly to set up “Forest Garden” at the location where the land in issue is situate. It is submitted that in the absence of appropriate resolution passed by the General Body of the said Corporation, merely on the basis of the resolution passed by the Standing Committee of - 22 - the said Corporation, it was impermissible in law for the Commissioner of the said Corporation to initiate the acquisition in issue. . It is further submitted that even otherwise the acquisition proceedings have been illegally initiated in as much as the Commissioner of the said Corporation ought to have submitted appropriate application to the State Government in this regard, whereas the Commissioner of the said Corporation has submitted the application to the Collector instead of the State Government. . Thirdly it is submitted that such an application is not even made by the Commissioner but is made by only Assistant Commissioner, of the Corporation who in law has no authority to make such an application.

10. On the other hand, it is contended on behalf of the said Corporation that the power to acquire the land basically vests with the Government and that the same is delegated to the said Corporation, by virtue of provisions of Section 76 of the said Act. It is further contended that the manner and the method of such an acquisition is thereafter prescribed by sections 77 and 78 of the said Act. In the submission of the said Corporation, appropriate steps were accordingly taken by the Commissioner, and that therefore, the acquisition proceedings were validly initiated and completed. In the submission of the learned counsel for the said Corporation therefore, there was no need in law for the General Body of the Corporation to take any decision and/or pass any resolution for initiation of such an acquisition proceedings. - 23 -

11. In our view before starting any acquisition proceeding for acquiring land for the establishment of a ‘Forrest Garden’ the said Corporation was required to decide as to : - (a) Whether there was any need at all to establish a “Forest Garden” ? AND if such need at all was there, Whether one or more than one such gardens were needed ? (b) Where should such Forest Garden(s) be located ? (c) What should be the total area of such a Forest Garden(s) ? (d) Whether is it possible to establish such “Forest Garden” at a place/land which is already available with Corporation? (e) If no such place/lands are available, as aforesaid, what are the ways and means of getting such place/land i. e. can the Corporation get it from State Government or Central Government as “Forest Department”? (f) Is it necessary for this purpose to acquire land? (g) Whether the financial condition of the Corporation permits incurring of such an expenditure, firstly for acquisition of the land to establish such a “Forest Garden (s)”, and secondly the total expenditure that would go in for actual establishment of the “Forest Garden(s)” at the acquired site, including the recurring expenditure for its maintenance etc. ? We will however hasten to add that these aspects are only illustrative and - 24 - that this is not an exhaustive list of various aspects to be considered by the Corporation.

12. Now, in view of the rival contentions of the parties, the issue is as to who should actually be taking the aforesaid decisions. In other words the question is as to who amongst the three authorities/bodies viz. the General Body, the Standing Committee, the Commissioner, of the said Corporation is required to consider inter-alia the aforesaid aspects and take decisions in that regard. . Before we answer this issue, we must make it clear that it is not in dispute that the issue of establishment of a “Forest Garden” was never placed before the General Body of the said Corporation for any purpose, whatsoever. Admittedly, in this regard all the decisions have been taken at the level of the Standing Committee and/or Commissioner of the said Corporation. In view of these admitted facts of the present case, we are called upon to decide the aforesaid issue.

13. The aforesaid section 63(1b) of the B.P.M.C. Act reads thus- “Section 63 – It shall be incumbent on the Corporation to make reasonable and adequate provision, by any means or measures which it is lawfully competent to it to use or to take, for each of the following matters, namely:- (1b) urban forestry, protection of the environment and promotion of ecological aspects;” - 25 - The aforementioned section 66(10) and (22) of the B.P.M.C. Act reads thus- “Section 66 – The Corporation may in its discretion, provide from time to time, either wholly or partly, for all or any of the following matters, namely:- (10) the provision of public parks, gardens, play-grounds and recreation grounds; (22)the establishment and maintenance or the aiding of libraries; museums and art galleries, botanical or zoological collections and the purchase of construction on buildings therefor;” . It is true that in neither of these two provisions we can find any reference, for the establishment of specifically “Forest-Garden”. In our view however on that ground it cannot be said that a Corporation cannot at all provide for establishment of a ‘Forest Garden’.

14. The perusal of section 63 of the BPMC Act shows that it is the duty of the Corporation to make reasonable and adequate provision for each of the matters set out in section 63. On the other hand, perusal of section 66 of the BPMC Act shows that the same deals with powers of the Corporation to provide for the matters set out therein either wholly or partly in its discretion. Thus, section 63 deals with the matters that the Corporation is duty bound to provide, whereas section 66 deals with the matters which the Corporation may or may not provide in its discretion. - 26 -

15. The decision taken by the Corporation to set up a “Forest Garden” may fall under section 63(1b) or may be covered by section 66(10) of the B.P.M.C. Act. In our view, this decision will not be covered by the provisions of section 66(22) of the B.P.M.C. Act, in as much as the said provision really pertains to setting up of a botanical or zoological collections as such and not to Botanical or Zoological garden as such, much less a “Forest Garden”. In our view the term ‘a botanical or zoological collections’ will have to be considered in the context of the accompanying words that are appearing in the said provision, on the principle of “noscitur- a-sociis” which is explained by the Supreme Court in the case of Municipal Corporation of Greater Bombay Vs. Bharat Petroleum Corporation reported in (2002) 4 SCC 219 ( Paragraph 7) as under :- This extract is taken from Municipal Corpn. of Greater Bombay v. Bharat Petroleum Corpn. Ltd.,(2002) 4 SCC 219, at page 226 :

7. …………The principle underlying noscitur a sociis is that, two or more words which are susceptible of analogous meaning when are coupled together are to be understood as used in their cognate sense, taking, as it were, their colour from each other, that is, the more general is to be restricted to a sense analogous to the less general. ………………………….”

16. If we construe ‘botanical or zoological collections’ words in the light of the aforesaid doctrine of interpretation it will become clear that such ‘collections’ are those that are to be kept in libraries, museums and art galleries or buildings thereof. We hold that under Section 66(22) of the BPMC Act ‘botanical or zoological collections’ are those that are not meant - 27 - to be found in gardens but are those that are to be found in libraries, museums, art galleries or buildings thereof.

17. However, we are not called upon to decide whether the setting up of a ‘Forest Garden’ falls under aforesaid section 63 or 66. For the purpose of issues posed before us for consideration it hardly matters whether it falls under section 63 or 66. For our purposes, in view of the controversy raised in the present group of matters, it is enough to note that the same may fall either under section 63(1b) or 66(10) of the BPMC Act. In either of the cases, none the less it will be for the Corporation to take all the decisions pertaining to the establishment of such a “Forest Garden”. Suffice to say that in the light of these provisions certainly a Corporation can make an appropriate provision for setting up a ‘Forest Garden’. As has been demonstrated hereunder in detail, only after the Corporation accordingly decides to set up a “Forest Garden” then and then only it can be said that the land on which the said “Forest Garden” is to be established will be “a property required by the Corporation” for the purpose of the BPMC Act.

18. When the BPMC Act lays down that it is for the “Corporation” to make such a provision, in our view, such a provision will have to be made by ‘the General Body’ of the Corporation with which the entire affairs of the Corporation vest. The affairs of every Municipal Corporation - 28 - established under the said Act are required to be conducted and managed by the democratically elected General Body. Obviously, whenever and wherever the said Act contemplates taking of any decision by the said Corporation, such decision must be taken by the General Body of the Corporation, of course, unless otherwise expressly provided by the provisions of the BPMC Act. Therefore we hold that unless there is a provision contained in the BPMC Act which specifically empowers either the Standing Committee, or the Commissioner or any other authority/body of the Corporation to take any decision for or on behalf of the said Corporation, any decision as to the affairs of the said Corporation must be taken by the General Body of the said Corporation. It goes without saying that if there is any provision under the BPMC Act that empowers either the Standing Committee, or the Commissioner or any other authority/body of the Corporation to take any decision for or on behalf of the said Corporation, it will be open for such an authority/body to take any such decision for and on behalf of the Corporation. However if there is no such express provision in the BPMC Act that empowers/authorizes such other body/authority accordingly, then in that event any such body/authority cannot take any decision for and on behalf of the Corporation.

19. In view of our aforesaid conclusions, we must try to find out as to whether there is any provision in the BPMC Act which expressly/specifically empowers either the Standing Committee or the - 29 - Commissioner of the said Corporation to take decisions in the aforesaid regard for and on behalf of the Corporation. This is more so because a decision to establish a “Forest Garden” especially by acquiring large track of lands under the said Act involves payments of enormous amounts towards compensations as also incurring of huge further expenditure towards creating an infrastructure for its establishment and maintenance. The decisions as to the various aspect listed out hereinabove therefore involve issues causing a heavy financial drain on the financial resources of the said Corporation. The said Corporation may have its own priorities to spend its monies and it is highly probable that the General Body in its wisdom may not think it necessary to establish a “Forest Garden” at the cost of huge expenditure by keeping aside other public purposes. However, it is the General Body, which has to take such a decision, and it is not for others, at least for us, to comment upon it one way or the other.

20. On behalf of the said Corporation, reliance was placed only on section 77 and 78 of the BPMC Act to support the action, taken by the Commissioner at his own level, backed by the resolution passed by the Standing Committee of the said Corporation. . Chapter VIII of the BPMC Act deals with “Municipal property”. Sections 76, 77 and 78 deal with acquisition of property and section 79, 80 and 81 of this Chapter deal with disposal of property. In this case, we are not concerned with that group of sections from this Chapter, which deal - 30 - with disposal of property. We are concerned with that group of provisions which deal with acquisition of property in this Chapter.

21. Section 76 deal with power of Corporation as to acquisition of property. There is nothing in this provision which can assist us in deciding the aforesaid issue, raised before us. Therefore, it leaves with only the provisions of Section 77 and 78, which read thus – “77. Acquisition of immovable property- (1) Whenever it is provided by this Act that the Commissioner may acquire or whenever it is necessary or expedient for any purpose of this Act that the Commissioner shall acquire, any immovable property, such property may be acquired by the Commissioner on behalf of the Corporation by agreement on such terms and at such rates of prices or at rates or prices not exceeding such maximum as shall be approved by the Standing Committee either generally for any class of cases or specially in any particular case. (2) Whenever, under any provision of this Act, the Commissioner is authorized to agree to pay the whole or any portion of the expenses of acquiring any immovable property, he shall do so on such terms and at such rates or prices or at rates or prices not exceeding such maximum as shall be approved by the Standing Committee as aforesaid. (3) The Commissioner may on behalf of the Corporation acquire by agreement any easement affecting any immovable property vested in the Corporation, and the provisions of sub-sections (1) and (3) shall apply to such acquisition.

78. Procedure when immovable property cannot be acquired by agreement:- (1) Whenever, the Commissioner is unable under section 77 to acquire by agreement any immovable property or any easement affecting any immovable property vested in the Corporation or whenever any immovable property or any easement affecting any immovable property vested in the Corporation is required for the purposes of this Act, the [State] Government may, in its discretion, upon the application of the Commissioner made with the approval of the Standing Committee and subject to the other provisions of this Act, order proceedings - 31 - to be taken for acquiring the same on behalf of the Corporation, as if such property or easement were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 (I of 1894). (2) Wherever an application is made under sub-section (1) for the acquisition of land for the purpose of providing a new street or for winding or improving an existing street it shall be lawful for the Commissioner to apply for the acquisition of such additional land immediately adjoining the land to be occupied by such new street or existing street as is required for the sites of buildings to be erected on either side of the street, and such additional land shall be deemed to be required for the purposes of this Act. (3) The amount of compensation awarded and all other charges incurred in the acquisition of any such property, shall, subject to all other provisions of this Act, be forthwith paid by the Commissioner and thereupon the said property shall vest in the Corporation.”

22. A perusal of both these provisions will demonstrate that the provision of section 77 has no role to play in the facts and circumstances of this case in as much as that provision deals with acquisition of property by way of agreement, whereas we have a matter before us where property is acquired as and by way of compulsory acquisition under the provisions of the said Act. Thus, it leaves only one provision to be considered by us viz. Section 78 of the BPMC Act, which we do hereunder- . The provisions of section 78 of the BPMC Act are attracted when an immovable property is required for the purpose of the BPMC Act, and that it is found that as it is not possible to acquire the same by way of an agreement it has become necessary to compulsorily acquire the same by taking steps under the said Act. In such a case the Commissioner with the - 32 - approval of the Standing Committee has to apply to the State Government, seeking an order for taking out proceedings for acquisition of such a property on behalf of the Corporation, as if such property was land needed for a public purpose within the meaning of the said Act.

23. In the facts of the present case, it is the Assistant Municipal Commissioner who has applied to the Collector, with the approval of the Standing Committee seeking an order to take proceedings for acquisition of the properties in issue. Upon receipt of such a proposal, the impugned action of acquisition has been initiated and completed.

24. We do not find any substance in the contention of the petitioner that it is not the Assistant Municipal Commissioner but the Commissioner himself who should have applied for initiation of proceedings under the said Act. Along with affidavit dated 29th May, 2008 filed in Writ Petition No. 1296 of 2008 on behalf of the said Corporation, at Exhibit 4 (page 120) a document is produced on behalf of the said Corporation showing that on 6th August, 2002 the then Municipal Commissioner under his own signature had proposed to the Secretary of the said Corporation that an approval of the Standing Committee be obtained for acquiring under the said Act, the lands which are subject matter of present group of petitions along with other lands admeasuring about 50 hectares, in accordance with availability of finance. In response thereto, the Secretary of the said Corporation - 33 - communicated approval vide communication dated 6-8-2002, produced at Exhibit 5 (page 122). The official notings reflected from the xerox copy of the document dated 15th June, 2002 produced at Exhibit 3 (page 116) along with the same affidavit aforesaid, also show that the proposal was routed through the Municipal Commissioner, of the said Corporation. Therefore, even if contention of the petitioner is accepted that the actual application sent to the Collector seeking to initiate proceedings under the said Act for compulsory acquisition of the lands in issue was signed and sent by the Assistant Municipal Commissioner and not by the Commissioner of the said Corporation himself, we do not find that this will constitute a gross illegality in the initiation of the acquisition proceeding in issue. In our view, once the proposal is shown to have been accepted by the Commissioner, processed by the Commissioner and sent to the Collector in terms of the directions of the Commissioner, only because the same was formally signed not by the Commissioner himself but by the Assistant Municipal Commissioner, in law, would not be so vital to warrant vitiating of the entire acquisition proceeding. In our view, if it is demonstrated that substantial compliance is done with the statutory requirement of section 78 of the said Act, no fault can be found with these acquisition proceedings, on this ground as claimed by the petitioners.

25. We also do not find any substance in the contention of the petitioners that the proposal for acquisition of the lands in question ought to - 34 - have been moved by the Commissioner of said Corporation with the “State Government” alone and that the same has been wrongly and incorrectly moved with the Collector of District Pune. In our view, the Collector was fully empowered under the BPMC Act to take appropriate decisions in this regard. In our view, there is no force in the contention of the petitioners that approval/order for taking out proceedings for compulsory acquisition under the said Act for acquiring the properties in issue was passed by the Collector and not by the State Government, and that therefore initiation of acquisition proceedings was illegal.

26. Thus, if we come to the conclusion that the land which forms subject matter of the present group of petitions was required by the said Corporation for setting up of “Forest Garden”, then in that event it becomes clear that appropriate procedure contemplated by section 78 has been followed in the present case. . However, as discussed hereinabove it is for the said Corporation i.e. the General Body of the said Corporation under Section 63 and/or 66 of the BPMC Act to provide for the establishment of a “Forest Garden”. Once it is so provided by the said Corporation i.e. by its General Body by taking appropriate decisions in regard to all the afore-mentioned as also other connected issues in that regard (relating to location, extent/area etc.) then and then alone it can be said that, in law, the land under acquisition is “required by the said Corporation”. If it is so found then, the Commissioner - 35 - under the aforesaid Section 77 may acquire the same by agreement or under Section 78 may acquire the same compulsorily under the said Act. In absence of any specific provision under the BPMC Act empowering either the Commissioner or the Standing committee to take any decision in regard to any of the afore-listed issues pertaining to the need for establishment of a ‘Forest Garden’, mere decision of the commissioner backed by an approval of the standing committee of the said Corporation will not be enough, particularly in absence of any decision of the General Body of the said Corporation to that effect, to come to a conclusion that the lands under acquisition “are required by the said Corporation” for establishment of a ‘Forest Garden’, warranting an action for the acquisition under Section 77 or 78 of the said Act at the hands of the Commissioner of the said Corporation.

27. Though it may not be strictly applicable in the facts of this case, we may note that even when the land is reserved in a Development Plan and when provisions of section 126 and 127 of the MRTP Act are attracted in a case, the concerned Municipal Council or Corporation is required to pass a resolution for acquisition of such a land, failing which the reservation lapses. If this scheme laid down by the Legislature is considered in the context of the question posed before us, it will become clear that even where the General Body of the Corporation has approved the Development Plan, containing reservations, meant for public purposes (thereby - 36 - concluding that the lands under the reservations are needed for public purposes) still when the occasion arises to acquire such lands under reservation and to conclusively hold that these lands are needed for public purposes, the Corporation, meaning thereby the General Body of the Corporation, has to specifically pass a resolution for acquisition of such land. Now it is settled position of the law at least under the MRTP Act that such a reservation lapses in absence of such a resolution of the Corporation (of course coupled with other requisite steps to be taken as contemplated by the MRTP Act). In this regard we may usefully refer to the latest judgments of the Supreme Court in the case of Girnar Traderes Vs. State of Maharashtra, reported in (2007) 7 SCC 555.

28. Thus, if it is necessary for the General Body of the Corporation to pass a resolution for acquiring lands even in cases where admittedly earlier it is held and concluded by the General Body of the Corporation (by making reservation(s) in the Development Plan) that particular lands are needed for public purpose, in a cases like the one with which we are presently dealing, it will be all the more necessary for the General Body of the Corporation to pass a resolution for initiating the acquisition proceedings. As explained hereinabove, while passing such resolution the General Body of the Corporation is bound to decide on various aspects/issues of the matter, some of which are set out hereinabove.

29. In view of the aforesaid discussions we hold that the scheme of - 37 - the BPMC Act in the matters of compulsory acquisitions of immovable properties are concerned is as under :- . There has to be a purpose contemplated by the BPMC Act for which the Corporation needs such immovable property. Then a proposal for acquisition is to be prepared after an appropriate home work by the concerned department of the Corporation for the consideration thereof by the General Body of the Corporation. Then the General Body of the Corporation passes a resolution that such property is required by the Corporation. At the time of passing such a resolution the General Body inter-alia considers various aspects, some of which are listed our hereinabove, relating to such requirement, especially the financial burden that it is going to cast on the Corporation. This financial burden will include not only the initial 2/3rd amount of compensation the Corporation will have to deposit with the Land Acquisition officer for initiation of proceedings for acquisition under the said Act, the balance 1/3rd thereof to be deposited before the award but also the one that the Corporation will have to pay in case of references that are most likely to be made under section 18 of the said Act. After considering all the relevant aspects, once the General Body takes a decision ( by passing an appropriate resolution ) that the immovable property in issue is required by the Corporation then and then alone it can be said that such an immovable property is required by the such Corporation. - 38 - Thereafter comes the role of the Municipal Commissioner. The Commissioner has to hold negotiations with the land-holders and try to acquire the lands by way of mutually agreed consideration. If the Commissioner succeeds therein it saves the Corporation from being exposed to unnecessary risks of ending up paying compensation that is not even reasonably anticipated by the Corporation, as a result of proceedings initiated Section 18 of the said Act. The Commissioner while negotiating may offer TDR or alternative immovable property in exchange instead of monitory compensation, which neither a Land Acquisition officer nor a Court entertaining proceedings initiated Section 18 of the said Act can offer while making an award. If the Commissioner fails to acquire the lands by way of negotiations then comes the role of the Standing Committee of the Corporation. The Standing Committee has to pass a resolution proposing to acquire such lands compulsorily under the said Act, by examining the proposal especially from the point of financial implications thereof. After the Standing Committee passes such a resolution then the a commissioner has to submit the proposal for the compulsory acquisition of such lands under the said Act with the Collector. . Thus the Commissioner of the Corporation gets himself clothed with the power to take steps under the BPMC Act for acquisition of such immovable property once such a resolution is passed by the General Body, backed by the appropriate resolution of the Standing Committee and not till - 39 - then. Armed with such a decision of the Corporation and the resolution of the Standing Committee the Commissioner can initiate proceedings for compulsory acquisition under the said Act.

30. Therefore we hold that, in absence of any decision/resolution of the General Body of the said Corporation on any of the afore-stated issues relating to requirement of establishment of a ‘Forest Garden’, it cannot be said that the land under acquisition is an immovable property required for the purposes of the BPMC Act by the said Corporation, as contemplated by the provisions of Section 77 r/w 78 of the BPMC Act. Consequently we also hold that the commissioner of the said Corporation, even if backed by the approval of the Standing Committee of the said Corporation, in absence of such resolution/decision of the General Body of the said Corporation could not have initiated the acquisition proceedings for acquiring the lands in issue in this group of petitions. What is true and correct scope of provisions of section 7 of the Land Acquisition Act, 1894 ?

31. The provisions of section 7 of the said Act reads thus- “7. Whenever any land shall have been so declared to be to be needed for a public purpose for a Company, the [appropriate Government], or some officer authorized by the [appropriate Government], in this behalf [or, as the case may be, the Commissioner] shall direct the Collector to take order for the acquisition of the land.” - 40 - (Emphasis supplied)

32. In the present case a notification has been issued under section 6, which contains a specific direction that has been re-produced hereinabove in Marathi language with its English translation. For the sake of convenience, the translated portion is once again re-produced hereinunder- “He is also directed to take order for acquisition under section 7 of the Land Acquisition Act.”

33. There is nothing produced on record by the Respondents to show that this part of the Notification is with application of any mind on the part of the authority which has issued such Notification. This portion appears to have been included therein only mechanically as and by way of formality. No exercise appears to have been gone into for issuing such an order as provided by Section 7 of the said Act. This becomes more glaring from what has transpired during the pendency of these petitions, which is considered at length hereunder.

34. Admittedly, initially in terms of the aforesaid specific directions, the Collector (in this case the Special Land Acquisition Officer (15) Pune) did not take any order at all from the appropriate Government or an officer authorized by the appropriate Government in that behalf or the - 41 - Commissioner, for the acquisition of the lands in issue. Therefore, the petitioners were allowed to amend the petitions, permitting the petitioners to raise specific contentions in this regard, which have been done. In response to these amended portions of the petitions, on behalf of the respondents not only affidavits have been filed but also needful has been done “to take order” from the Commissioner to acquire the lands in issue. Such directions have been issued by the Commissioner as aforesaid, as post facto and that too with retrospective effect.

35. These steps that were taken have triggered of another debate between the parties viz. Whether the Commissioner could have granted such post facto sanction and that too with retrospective effect, especially when, these petitions were part-heard before this Court ? . It is the contention of the petitioners firstly that such ex-post- facto sanction could not have been granted by the Commissioner and secondly that the Commissioner did so without application of mind. It is also further contended that various steps are required to be taken under the said Act in a chronological sequence only and therefore, after declaration of award in a post-facto manner, steps cannot be taken as contemplated by under section 7, which if permitted, makes a mockery of the provisions of the Land Acquisition Act. - 42 -

36. On the other hand, it is submitted by the respondents that the provisions of section 7 are to be considered only as procedural one and not as substantive in character. It is further submitted that taking steps as contemplated by section 7 i. e. taking order as contemplated thereby, is only directory in nature and not mandatory. In the submission of the Respondents a clear indication that the aforesaid provision is directory and not mandatory is that the said Act does not provide for any consequences for its non-compliance. It is therefore, submitted by the respondents that now since the Commissioner has issued such an order as contemplated by section 7 of the said Act and that too with retrospective effect, nothing survives in this objection of the petitioners.

37. If we consider the entire scheme of the said Act in the light of the aforesaid controversy raised by the parties, it becomes clear that the procedure to be followed under the said Act can be conveniently divided into two parts to be followed in three stages. The first part i.e. the first stage deals with taking a decision or coming to a definite conclusion as to whether the lands in issue are required for any public purpose or not. Once a conclusion is drawn and a decision is taken that the concerned lands are required for a public purpose and that it is necessary to acquire them the first part comes to an end. The second part i.e. the third stage comprises of various steps to be taken for implementation of such a decision and consequent action to be taken in that regard for actual acquisition of the - 43 - lands in issue. In between the aforesaid first and third stage is a second stage with which we will deal hereunder, at length.

38. The aforesaid first part comprises of Sections 4 to 6 of the said Act and gets concluded with the issuance of notification or making of a declaration under section 6 of the said Act, to the effect that a particular land is needed for a public purpose. Requisite procedure is to be followed under this group of Sections 4 to 6 only to conclude that the lands in issue are required for a public purpose. Various issues are considered during this exercise, the main issue being whether the purpose for which the lands are sought to be acquired is a public purpose or not. Once such a declaration is made under Section 6 of the Said Act then it is presumed that a particular land is needed for a public purpose. Thereafter further steps are required to be taken under various provisions of the said Act that are set out in the section 7. After appropriate exercise is accordingly carried out, the thirds stage comes for actual compulsory acquisition of such a land which is needed for a public purpose. . The second stage obviously requires the Collector, to “take an order”, contemplated by section 7 from the appropriate government or some officer, authorized by the appropriate government in that behalf or as the case may be, Commissioner, for acquisition of such lands which are needed for the public purpose. In our view the requirement of law “ ‘to take an order’ for the acquisition” of the land is obvious for the reasons set out - 44 - hereunder. This second stage, as explained hereunder in true sense is the bridge between the aforesaid two parts of the said Act i.e. the first and the third stage.

39. Only because the Appropriate Government as the case may be, the Commissioner, is satisfied that any particular land is needed for a public purpose, and only because such a declaration is made under section 6 of the said Act, does not necessarily mean that further steps under the said Act must be taken to compulsorily acquire such a particular land, needed for the public purpose. There may be overwhelming circumstances and/or reasons and/or grounds that may be placed before the appropriate government or as the case may be, the Commissioner, showing that though a particular land is needed for a public purpose, it may not be compulsorily acquired. One of the most common such circumstance would be that the appropriate government or the acquiring body may not be having sufficient funds to pay for the compensation of such a land. It may also be that in view of the other priorities before the acquiring body or the appropriate government, which are more urgent and pressing, the particular land though needed for a public purpose may not be acquired immediately and the acquisition may be postponed to a future date or a future event. There are very many things we see in our day to day life that are required to be done to satisfy public needs or public purposes. Many such things are required to be done on very urgent basis. But on account of various limitations (mainly financial) the - 45 - public bodies and/or local bodies and/or the Government is found unable to take any steps in that regard.

40. In this regard we are reminded of a case that came to this court in regard to some other dispute, which can give us an idea of such an eventuality. The facts may not be accurately reproduced hereunder but roughly the same were as set out hereinafter. In that case after appropriate exercise it was concluded that large track of land was required for public purpose of an approach road to a sizable residential area near an airport. After issuance of Section 6 notification declaring that the land was so required for public purpose of an approach road, the concerned statutory authorities of the Central Government stepped in claiming that the air-strip was required to be extended for expansion of the airport and therefore the proposed approach road be not set up in the land so Notified for acquisition under Section 6. It was claimed that the airport was also being used by Air Force i.e. for Defense operations. Now under such circumstances in spite of issuance of a Section 6 notification an order as contemplated by Section 7 will not be granted/issued and the Collector or the Lad Acquisition Officer will not be permitted under the said Act to proceed with the acquisition. We are also reminded of an incident that occurred in our state of an airplane crash on account of paying of a vehicle on a road just adjacent to a domestic airport, which resulted into shifting of the road itself to another location away from the boundary of the airport. Under such - 46 - circumstances even if a Notification is issued under Section 6 the collector will not be able “to take order” as contemplated by Section 7 of the said Act. It will not be possible to pen down herein all such eventualities and possibilities that may require the appropriate government as the case may be, the Commissioner, not to permit and consequently order/direct the Collector to acquire the particular land though it is concluded that the same is needed for the public purpose. In case of such eventualities even if declaration is made under section 6 of the said Act, the appropriate government, as the case may be, the Commissioner may not direct the Collector to acquire the particular land, needed for a public purpose. In case if such direction is not issued, obviously the Collector will not be authorized and or empowered to take steps as contemplated by the provisions of section 8 or 9 or 10 etc. of the said Act for compulsory acquisition of the lands that are needed for the public purpose.

41. This aspect becomes clearer from the section 8 of the said Act, which reads thus- “8. The Collector shall thereupon cause the land (unless it has been already marked out under section 4) to be marked out. He shall also cause it to be measured and if no plan has been made thereof, a plan to be made of the same.” (Emphasis ours) . Section 8 of the said Act uses a specific term viz. “thereupon” - 47 - which clearly demonstrates that only upon issuance of an order to the Collector for acquisition of the land, as contemplated by section 7 of the said Act, the Collector can take steps under section 8. Similarly, section 9 of the said Act also uses a specific language viz. “the Collector shall then .....”, which shows that only after taking steps under section 8, the Collector can go ahead and take steps under section 9. Thus, in the absence of “an order for acquisition of land”, issued to the Collector, as contemplated by the section 7, the Collector cannot proceed under section 8 and unless the Collector take steps under section 8, the Collector cannot proceed to take further steps, such as under section 9 etc. of the said Act.

42. If the aforesaid reasoning and consequent conclusion is not correct, then one fails to understand as to why the said Act should at all have the provision of section 7 in it. On the plane reading of section 7 in the context of the entire scheme of the said Act, we do not see any purpose of having section 7 in the said Act other than that the Collector should “ ‘take order’ for acquisition of the land” from the appropriate government or some officers authorized by it in that behalf or, as the case may be, from the Commissioner, before taking further steps towards the intended acquisition. . We specifically note herein that none of the learned counsels appearing on behalf of either the Petitioners or the Respondents were able to point out to us any other object or purpose of Section 7 of the said Act. - 48 -

43. It is well settled : “Ut res magis valet quam pereat” (The court strongly leans against any construction which tends to refute a statute to a futility.) In Fawcett Properties Vs. Buckinghum Country council reported in 1961 A.C.363 (676) Lord Denning said : “But when a statute has some meaning even though it is obscure, or several meanings, even though there is little to choose between them, the courts have to say what meanings the statute has to bear, than reject it as a nullity. As Farwell J. put it when speaking of statute : “ Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning, and not to declare them void for uncertainty ” : see Manchester Ship Canal Co. V. Manchester Racecourse Co………………….”

44. Therefore, we have held that before proceeding to take steps for acquisition of any land compulsorily under the said Act the Collector is required to “take an order for acquisition of the land” that is declared under section 6 as needed for a public purpose. We have also held that if no such “order for acquisition of the land” is taken or obtained by the Collector, as contemplated by section 7 of the said Act, the Collector will have no jurisdiction and/or authority in law to take any steps for compulsory acquisition of land, as contemplated by and from section 8 onwards of the said Act.

45. We may note here itself that by its conduct the State Government has accepted the aforesaid legal requirement, in as much as, in response to the objections raised by the petitioners in this regard by way of - 49 - their first amendment, the State Government has taken steps as depicted by the aforesaid chronology of events leading to the passing of an order as contemplated by Section 7 of the said Act by the commissioner on 25th April 2008. The fact that such steps were taken by the State Government to obtain (though in a post facto manner with retrospective effect) an order from the commissioner as contemplated by the provisions of Section 7 of the said Act clearly takes away the force of the submissions of the Respondent to the effect that the language of the Notification issued under Section 6 of the said Act itself amounts to grant of an order under Section 7 of the said Act. Even otherwise on perusal of the Notification issued under Section 6 of the said Act, more particularly the aforesaid translated sentence therefrom, we do not find substance in the contention of the Respondents that there was no need for a separate order as contemplated by Section 7 of the said Act, in the facts and circumstances of these cases and that issuance of Notification under Section 6 of the said Act itself amounts to granting of such an order as contemplated by Section 7 of the Said Act.

46. Having held that the Collector has to obtain an order for acquisition of the land in issue, as contemplated by section 7 of the said Act, the question that now needs to be considered by us is as to whether obtaining of such order by the Collector for acquisition of the land is only a procedural requirement of the said Act or not and also as to whether such a requirement it is only directory in nature and not mandatory in nature, as contended by the Respondents herein. In other words we have to test the - 50 - legality and validity of the order issued by the commissioner in this case on 25th April 2008 as and by way of post-facto sanction with retrospective effect.

47. A bare perusal of the scheme of the said Act, in the background of aforesaid discussion will clearly indicate that the requirement of taking/obtaining ‘an order for acquisition of land’, as contemplated by section 7 of the said Act is a substantive requirement of law and not just a procedural requirement. Under the scheme of the said Act it is for the Appropriate Government or some officer authorized by it or as the case maybe, the commissioner who is conferred with the authority or power or jurisdiction to decide as to whether any land which is found as required for public purpose, is to be acquired or not. Unless such a decision is taken by the Appropriate Government, the collector cannot proceed further and take steps for acquiring the land compulsorily under the said Act. The collector has to only implement such a decision that is taken by the appropriate Government etc. The Collector himself has no jurisdiction/ authority / power to decide whether an action to acquire the land so needed for public purpose. If the collector fails to ‘take an order for acquisition of land’ the collector will not have jurisdiction and/or authority in law to take any further step contemplated by the provisions contained in section 8 onwards of the said Act. Therefore steps if any taken by the collector under any of the provisions of the said Act as contemplated by Section 8 onwards, the - 51 - action of the collector in that regard will be clearly unauthorized and consequently illegal and unsustainable. Issuance of an order as contemplated by Section 7 of the said Act is thus the source for the authority of the collector to take steps for the actual compulsory acquisition of the lands under the said Act. We therefore hold that requirement of ‘taking an order for the acquisition of the land’ as contemplated by Section 7 of the said Act is a substantive requirement of the law and therefore we reject the contention of the learned AGP that it is only a formal or procedural requirement.

48. Having concluded that the aforesaid requirement of taking an order for acquisition of land, as contemplated by section 7 of the said Act, is a substantive and not just procedural requirement of law, we now consider the contention of the Respondents that it cannot be said to be ‘a mandatory requirement’ and that it is only directory in nature. In the submission of the learned AGP, as the said Act does not provide for the consequence, much less a penal consequence, for non-observance and/or non compliance with such a requirement as contemplated by Section 7 of the said Act, such a requirement of law will have to be treated as directory and not mandatory.

49. In support of his submission the learned AGP placed reliance on the following judgments of the Supreme Court :- - 52 - a) Udayshankar Triyar Vs. Ramkaleshwar Prasad Singh AIR 2006 SC 289. b) State of U.P. Vs. Manbodhanlal Srivastava AIR 1957 SC 912.

50. It is true that the said Act does not provide for any consequences that should follow in case the Collector does not “take order for acquisition of the land”, as contemplated by section 7 of the said Act. A close reading of section 7 of the said Act in fact contemplates only issuance of ‘a direction’ to the Collector “to take order for acquisition of the land”. Thus, it contemplated “only a direction” to take such an order. It does not even contemplate that the Collector has to take such an order and only thereupon the Collector can proceed further with the acquisition proceedings. It is also true that there is no specific and explicit provision in the said Act that requires, much less mandatorily the Collector ‘to take an order’ as contemplated by Section 7 of the said Act, before taking further steps towards the acquisition proceedings.

51. However, as discussed hereinabove and as held by us already, the object and purpose of section 7 is obviously that the Collector must be authorised and/or empowered to take further steps, contemplated by provisions of section 8 onwards, for the purpose of acquisition of the land that are declared to be needed for the public purpose under section 6 of the - 53 - said Act. In the light of our aforesaid conclusion that requirement for the collector to take such an order is the substantive (and not just a procedural requirement) of the said Act, we are also of the view that such a requirement for the collect ‘to take order’ as contemplated by Section 7 of the said Act will have to be read into the Act to make the entire scheme of the said Act complete and meaningful. In our view absence of such an order as contemplated by the Section 7 of the said Act will amount to a missing link in the chain of requirements/steps that are to be taken for the compulsory acquisition of lands under the said Act. We hold that the true compliance with the letter and spirit of the provisions of Section 7 of the said Act is not in just ‘directing’ the collector ‘to take order for acquisition of land’ but in the collector factually and actually ‘taking’ such an order, as issuance of such an order alone will clothe the collector with jurisdiction and/or authority and/or power to proceed further with the compulsory acquisition of the lands under the said Act.

52. Strictly speaking, in our view, in the facts and circumstances of the present group of petitions the issue of compliance with the provisions of Section 7 of the said Act may not arise. This is because factually in the present group of matter a direction as contemplated by the said provision has been specifically issued to the collector by the Notification issued under Section 6 of the said Act. This factual aspect will be clear from the afore- stated translated portion of the said Notification. Thus in the present matter - 54 - the collector was directed to take the order for acquisition by the Notification itself issued under Section 6 of the said Act. But the Collector failed to take any such order for acquisition from the Appropriate Government or the Commissioner. Therefore there is non-compliance by the Collector and/or Appropriate Government and/or Commissioner with the provisions of the said Act. What was not done initially was, obtaining of such an order by the collector.

53. In our view since the Act itself does not contemplate specifically that Collector should take such an order as contemplated by Section 7 of the said Act, before proceeding with the acquisition, obviously the said Act also does not contemplate the consequence of the Collector not taking such an order but proceeding with the acquisition without taking such an order. It will be therefore, futile to even can tend and therefore, conclude that only because the Act does not contemplate of any consequence to follow in case the Collector fails to take an order for acquisition of the land, compliance with the requirement contemplated by the provision of section 7 of the said Act should be treated only directory and not as mandatory.

54. In our view, the appropriate Govt. is possessed of powers to take decision to acquire land or not. The power in some cases is delegated to Commissioner. What is more important is that the - 55 - power to decide whether particular land is to be acquired or not is not with the Collector. Therefore, section 7 directs to Collector to take order from the appropriate Govt. or Commissioner. Therefore, where Collector approaches the Govt. or Commissioner to take order for acquisition of land, the appropriate Govt. or Commissioner has to take decision as to whether land is to be acquired by compulsory acquisition. This decision is original decision in whole acquisition proceeding. On performance of this procedure, two effects follows- (1) that Government has decided to acquire land compulsorily thereby incurring liability to pay compensation at market rate; (2) the Collector is clothed with jurisdiction and power to acquire land, as provided by section 8 onwards. Therefore, such important provision cannot be said to procedural one or directory in nature, as contended by respondent. Therefore, post   facto  approval with retrospective effect will not protect the present acquisition proceedings.

55. Even otherwise it is settled position of law that it is not possible to formulate any universal rule to be made applicable for interpretation of a provision of any statute either as a mandatory or as a directory. There are various factors which the Court is required to take into consideration before determining such nature of the statutory provision in issue. This legal - 56 - aspects of the matter is dealt with by numerous Supreme Court judgments, all of which may not be referred hereunder. Suffice it to refer to one of them delivered in the case of Govindlal Chhaganlal Patel Vs. Agriculture produce Market Committee reported in (1975) 2 SCC 482 the relevant portion of which reads thus:- This extract is taken from Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, (1975) 2 SCC 482, at page 487 : “13. Crawford on Statutory Construction (Edn. 1940, Article 261, p. 516) sets out the following passage from an American case approvingly: “The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its de- sign, and the consequences which would follow from con- struing it the one way or the other.” Thus, the governing factor is the meaning and intent of the Legisla- ture, which should be gathered not merely from the words used by the Legislature but from a variety of other circumstances and con- siderations. In other words, the use of the word “shall” or “may” is not conclusive on the question whether the particular re- quirement of law is mandatory or directory. But the circumstance that the Legislature has used a language of compulsive force is al- ways of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissi- ble, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.1 …...........” . In another case of Mohan Singh Vs. Internationsl Airport Au- thority of India reported in (1997) 9 SCC 132 the Supreme Court, in this regard, has observed as under : - 57 - This extract is taken from Mohan Singh v. International Airport Authority of India, (1997) 9 SCC 132, at page 146 : “17………………………….. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the in- tent of the legislature and not always upon the language in which the intent is couched. The meaning and intention of the legislature would govern design and purpose the Act seeks to achieve. In Sutherland’s Statutory Construction, (3rd Edn.) Vol. 1 at p. 81 in para 316, it is stated that although the problem of mandatory and directory legislation is a hazard to all governmental activity, it is peculiarly hazardous to administrative agencies be- cause the validity of their action depends upon exercise of authority in accordance with their charter of existence — the statute. If the directions of the statute are mandatory, then strict compliance with the statutory terms is essential to the validity of administrative ac- tion. But if the language of the statute is directory only, then varia- tion from its direction does not invalidate the administrative action. Conversely, if the statutory direction is discretionary only, it may not provide an adequate standard for legislative action and the dele- gation. In Crawford on the Construction of Statutes, at p. 516, it is stated that: “The question as to whether a statute is mandatory or di- rectory depends upon the intent of the legislature and not up- on the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other....”

56. A perusal of these and such other judgments of the Supreme Court on this point will show that the most crucial aspect of the matter to be considered while dealing with such a question is that one must look into and find out the real intention of the legislature, in laying down the requirement (of the law) in issue. Whether the law provides or not, for a consequence that follows for non compliance with such a requirement is just one of the indicators and not the sole or decisive test to determine the nature of the requirement of the law in issue. Therefore we are unable to agree with the - 58 - contention of the learned AGP that only because the said Act does not provide for a consequence to follow on the Collector’s failure ‘to taken order’ as contemplated by section 7 of the Act, such a substantive requirement of the said Act (as held herein above by us) is to be treated merely as directory and not mandatory. In view of our aforesaid findings as also observations as to the true and correct scope of the provisions of Section 7 of the said Act and in view of the factual background of these matters, the ratio of the aforesaid two Supreme Court judgments relied by the learned AGP cannot be made applicable to our case.

57. In our view, the requirement of the said Act ‘to take order for acquisition of land’ by the Collector is really a bridge between the two parts of the said Act i. e. the second stage , the first part/stage being that part which concludes with issuance of notification under section 6 with the declaration that the lands in issue are required for public purpose and the second part i. e. third stage being one which starts with section 8 onwards, which deals with actual steps to be taken for the compulsory acquisition of the land. Crossing over of this bridge by the Collector, armed with such an order, alone will empower the Collector to proceed further with the acquisition of the land in issue. We therefore, hold that in view of the nature of provision of section 7 of the said Act in the context of the entire scheme of the said Act, it is mandatory for the Collect “to take order of acquisition the land” as contemplated by aforesaid Section 7. In our view, as held - 59 - hereinabove, such requirement is a substantive requirement of the said Act and not just a procedural requirement. On this ground also, we reject the contention of the learned AGP that the nature of provision of section 7 of the said Act is directory and not mandatory in nature.

58. Having held that it is mandatory for the Collector “to take order for acquisition of the land”, now we will have to decide as to whether such a mandatory and substantive requirement of the said Act can be fulfilled by way of ratification i.e. by issuing/obtaining post facto sanction with retrospective effect (as has been done in the present matters). It is contended by the learned AGP that the defect which was there in the present case in the beginning viz. the Collector had conducted the further acquisition proceedings without obtaining such an order, as contemplated by section 7 of the said Act, can be and has been in fact ‘rectified’ by obtaining an order from the Commissioner, by which post facto sanction with retrospective effect has been granted. In support of his contention that such an invalid act of the Collector viz. to proceed with the acquisition without obtaining such an order can be rectified, the learned counsel has relied upon following Supreme Court Judgments :- a) Maharashtra State Mining Corporation Vs. Sunil AIR 2006 SC 1923( paragraph 7) b) High Court of Judicature for Rajasthan Vs. P. P. Singh & Anr. (2003) 4 SCC 239. - 60 - . In the aforesaid judgments it is held that ratification means making valid an act, already done and that the subsequent ratification of an act already done is equivalent to prior authority to perform such an act. It is therefore, concluded that ratification assumes an invalid act, which is retrospectively validated.

59. The Petitioners, without disputing the aforesaid legal aspect of the matter, have responded to the aforesaid submission of the learned AGP by contending that various steps laid down by the provisions of the said Act are required to be followed in the same sequence as is provided by the said Act. Our attention has been drawn to the specific language used by the provisions of Section 8 onwards, such as ‘thereupon’ etc. to buttress this contention and to further submit that grant of such a post facto sanction runs counter to the scheme of the said Act. It is therefore submitted that such order of the commissioner is unsustainable and that it cannot cure the inherent defect that has crept in the acquisition proceedings. In this regard reliance is placed on the following judgment of the Division Bench of this court :- Ramrao s/o Pralhadrao Deshmukh Vs. Godavari w/o Rmrao Deshmukh 2008(2) Mh.L.J. 534 ( Paragraph 19)

60. The aforesaid principle derived from the Latin maxim “ratihabi- tio mandato aequiparatur” viz. ‘a subsequent ratification of an act is equiva- lent to a prior authority to perform such act’, in other words “rectification - 61 - by way of ratification” laid down by the two Supreme Court judgements re- lied on behalf of the learned AGP has been followed in a further judgment of the supreme court delivered in the case of Goa Shipyard Ltd. Vs. Babu Thomas reported in (2007) 10 SCC 662. The relevant portion of paragraph 13 thereof reads thus : This extract is taken from Goa Shipyard Ltd. v. Babu Thomas,(2007) 10 SCC 662, at page 671 : 13……………………………The High Court set aside the order of termination on the ground that the invalid act cannot be sub- sequently ratified by the Board of Directors. This Court after refer- ring to various earlier decisions set aside the order of the High Court. This Court held as under: (SCC pp. 99-100, paras 7 & 10) “7. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subse- quently ‘rectified’ by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely, ‘a subsequent ratification of an act is equivalent to a prior authority to perform such act’. Therefore ratification assumes an invalid act which is retrospectively validated. * * *

10. In the present case, the Managing Director’s order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20-2-1991 and the Board of Directors unquestionably had the power to termi- nate the services of the respondent. On the basis of the au- thorities noted, it must follow that since the order of the Managing Director had been ratified by the Board of Direc- tors such ratification related back to the date of the order and validated it.” We, therefore, reject the contention that the order of dismissal passed by CMD is invalid for want of authority.

61. In our view, the aforesaid “ratihabitio mandato aequiparatur” principle of law, as explained by the Supreme Court, and the action in issue taken by the respondents to derive benefit from it cannot bail out the respondents. Firstly, this principle of law cannot be applied in each and - 62 - every case or for implementation of every statutory scheme indiscriminately, without appreciating the scheme of the relevant statute. This principle of law can only be applied if the concerned statutory provision can, so to say, accommodate and permit in its fold such a post- facto action. This principle of law does not have a universal application. . Secondly, the aforesaid principle of law has only a limited application. It can validate an action that is taken without prior authority of law to perform a particular act, deed or thing. Where a great deal of exercise is to be gone into before taking a decision whether to permit taking of an action at all or not, this principle cannot apply. In the present case, unlike the aforesaid cases considered by the Supreme Court, the question is not of just authorizing or not authorizing the Collector to proceed with the acquisition, but the question is as to whether to permit or not to permit the compulsory land acquisition itself. In our view such decisions of substantive nature cannot be taken subsequent to passing an award in a post-facto manner by granting it a retrospective effect. Thirdly, if we consider the entire scheme of the said Act in its proper perspective it will be clear that the said Act lays down a specific sequence in which steps are to be taken for compulsory acquisition of land. The language used by the relevant provisions right from Section 4 clearly demonstrates that it is a well-woven scheme that contemplates taking of various steps in a well-defined sequence. If this sequence is changed the entire fabric of the scheme presented by the said Act will be destroyed, - 63 - which cannot be countenanced. There is no scope and/or discretion to change the sequence. It cannot happen that first Section 6 notification is published followed by Section 4 or that first steps are taken under Section 8/9 and then Section 6 Notification is published. Such change of sequence even if it is made by giving retrospective effect by way of post-facto action cannot be permitted in law. We therefore hold that by way of a post-facto sanction an order cannot be taken as contemplated by Section 7 of the said Act. Such order cannot be granted with retrospective effect especially after making of an award u/s 11 of the said Act. We hold that the requirement of issuance of such an order as contemplated by the Section 7 of the said Act is a substantive and mandatory requirement of the said Act and the same cannot be complied with as and by way of rectification by ratification i.e. by obtaining post facto order/sanction with retrospective effect.

62. However, it still leaves us with the contention of the petitioner that the Commissioner has issued such an order as contemplated by section 7 of the said Act, without application of mind. We find much substance in this ground of attack made by the petitioner on the aforesaid order of the Commissioner issued to rectify the defect by way of ratification. Here we must note that we had called for the entire original file i.e. all the original papers relating to the acquisition in issue from the office of the Special Land Acquisition Officer (15) Pune, for our perusal. Accordingly, the original entire file/papers was produced in this Court and the same was in - 64 - the custody of this Court even before the aforesaid action of ratification was initiated by the said Land Acquisition officer, resulting into issuance of an order, as contemplated by section 7 of the said Act by the Commissioner on 25th April 2008. The chronology of events set out in this regard hereinabove will demonstrate that on a single day Special Land Acquisition Officer (15) Pune sought for such an order from the Commissioner through the Collector, on the same day the Collector forwarded such a proposal, on the very day the Commissioner was pleased to grant it and on the very same day the order has also been issued, rectifying the defect by ratification. . It is obvious and very clear to us, in these set of events, that the Commissioner has not applied his mind at all, as required by the said Act and as extensively set out hereinabove by us on various issues before allowing the Collector to proceed with the acquisition of the land after issuance of notification, declaring that the lands in issue are required for public purpose. In our view, it was humanly impossible both for the Collector and thereafter for the Commissioner, especially in the absence of any papers relating to the acquisition, on one single day, to consider all these aspects of the matter and satisfy themselves that the lands were/are required to be acquired. As pointed out hereinabove this decision as to whether the lands Notified as needed for a public purpose are to be acquired or not is a very crucial decision required to be taken by considering very many factors and/or repercussions of such decision. It involves spending of huge public money, apart from other aspects involved therein, and therefore - 65 - is a very serious matter. . In our view such a decision could not have been taken and the consequent order could not have been issued, in one single day by both the collector and the commissioner, especially in absence of the original file/papers relating to the acquisition in issue maintained by the Land Acquisition Officer. A perusal of this order in issue will clearly demonstrate the casual manner in which it is passed. It contains no reasons, and on the face of it shows clearly non application of mind. The same order appears to have been passed mechanically, just for asking, without understanding the seriousness that it otherwise deserved, only and only to get over the difficulties which were pointed out in these matters during the course of hearing. . We therefore, hold that the Commissioner by the aforesaid order dated 25th April 2008 had rectified the said defect by ratification and by way of issuing the aforesaid order in the nature of post facto sanction with retrospective effect without any application of mind.

63. We therefore hereby quash and set aside the aforesaid order dated 25th April 2008 issued by the Commissioner. Resultantly we will have to proceed in these matters on the basis that there is no order issued to the Collector as contemplated by the provisions of Section 7 of the said Act, for acquisition of lands in issue. - 66 -

61. We also do not find any substance in the contention of the learned AGP that as the State Government has granted an approval under the first proviso of the sub-section 1 of Section 11 of the said Act to the award in issue, an order be deemed to have been granted to the collector as contemplated by Section 7 of the said Act. The object and purpose of granting an approval to the award under the said provision and the object and purpose of granting an order as contemplated by Section 7 of the said Act are entirely and totally different. We are sure, from the entire aforesaid turn of events that have occurred pending these petitions as part-heard, that the concerned officer of the State Government while granting such an approval was not even aware of the requirement of steps to be taken in compliance of what is contemplated by the provision of the Section 7 of the said Act. In our view such an approval granted to the award made under Section 11 cannot considered as a overall cure to all lapses; by then committed by the collector; in complying with the requirements of the said Act, just like a Holy Bath in Ganga River which in terms of Hindu philosophy results into washing away of all the sins committed by then, by an individual Hindu.

64. In view of the aforesaid discussion, we hold :- a) The requirement of the Collector “to take order for acquisition of the land” as contemplated by the provisions of - 67 - Section 7 of the said Act is a substantive requirement of the said Act and is not just a procedural requirement. b) The aforesaid requirement is mandatory in nature and is not just directory. c) It is not open to the Collector to comply with such a requirement by way of ratification i.e. by obtaining a post facto sanction with retrospective effect from the appropriate government or from the officer authorised by it in this behalf, or as the case may be, the Commissioner. d) Such order for acquisition of land must be granted/ issued with proper application of mind and by giving reasons in support thereof. e) The previous approval granted by the appropriate government or its authorized officer under the first proviso to Section 11(1) of the said Act does not amount to and cannot be considered as sufficient compliance with this requirement. Non compliance with section 5A of the Land Acquisition Act

65. It is the contention of some of the petitioners that no opportunity of hearing was given by the Land Acquisition Officer, as contemplated by section 5A of the said Act, before making the award. It was submitted that notices under section 4(1) of the said Act were received on 22nd January 2005 and that on 19th January itself i.e. even before receipt of notices, the - 68 - objections were filed in writing, in response to the notices issued under section 4 of the said Act, as also further time was sought to submit detail objection, in support of these contentions. An additional affidavit has been filed in Writ Petition No. 7736 of 2007, in addition to the contentions raised in the original petitions wherein it is further claimed that the time to file objections was granted by the Land Acquisition Officers to the petitioners till 4th February, 2005 and that on that date such additional objections were also submitted in writing. It is further stated on oath that no notice whatsoever under section 5A of the said Act was served on the petitioners, nor was an opportunity of being heard was offered to the petitioners in support of their objections, as contemplated by the provisions of section 5A of the said Act.

66. The respondents have refuted these contentions, though the respondents were unable to show from record that as a matter of fact notices of hearing, as contemplated by the provisions of section 5A of the said Act were served on the petitioners and that in fact the petitioners were heard in that regard. The learned AGP on the contrary relied upon the judgments of the Supreme Court in the case of Tej Kaur & Ors. Vs. State of Punbaj reported in (2003) 4 SCC 485 (paragraph 6) and contended that the petitioners have allowed the acquisition proceedings to go on until the award was passed and that this fact itself indicates that the petitioners did not have a genuine grievance against issuance of notices under section 5A - 69 - inquiry held by the Collector.

67. It is far well settled principle of law that the compliance with Section 5-A of the said Act is mandatory and that such compliance is absolutely mandatory even to satisfy the principles of natural justice. In this