BASANTIBAI FAKIRCHAND KHETAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition and 13 other petitioner filed under Art. 226 of the Constitution raised the question of constitutional validity of s, 44 of the Maharastra Housing and Area Development Act, 1976, being maharahstra Act No. XXVII of 1977 (hereinafter referred to as the Act), which provides the basis for determination of amount of acquisition of lands all municipal areas. The petitioners in all these petitions are owners of lands either agricultural of non-agricultural, situated within the municipal areas. It is not necessary torefer to the fact of each of the petition and it would suffice if the facts in the main petition are stated to appreciate the question urged by the rival sides.

(2.) The land involved in this writ petition bears Survey No., 28 and admeasures 398.60 Hectares and is situated at village Bhushi in Maval Taluka of Pune District. Mohanlal Fakirchand was the owner of this land having purchased ti under the sale ded dated Jan. 18 1966 leaving behind petition 1 - his widow,, and petitioner 2 to 5 - his childeren /. On August 1, 1978 respondnet 2Maharastea Housing & ARea DEvelopment Authority -sent a letter to Municipal counsil, Lonavala eliciting information regarding need of local populace for housing accommodation for economically weaker section low income economically weaker, section low income group and middle income group . For the purpose of dated August 3, 1978 and Feb. 10 1979 in the local newspaper inviting application for housing accommodation from general public. After having assessed therequirements respondent, 2,by letter date Sept. 15, 1979 conveyed to the State Government its initial requirement of the area of about 26 Hectaresfor the purpose of proposed social housing scheme to be developed within the limits of Lonavala Municipal Counsil, and requested the Government to publish notification under the provisions of S. 41(1) of the ACt. The proposal was precessed by the Public ?Works and Housing Department and the STate Goverment published a notice under the proviso to s. 41(1) of the Act and the notice was published in the Government Gazette on Aug. 30, 1979 inviting objections to the propsed acquisition. In pursuance of this notice, petitioner 3 lodged his prootest on Sept. 6 1979. After considering the various the objections including that of petitioner No.3 the State Government published the final notification under sub-section (1) of S. 41 of the Act in the Maharashtra Government Gazette dated JUly 3, 1980 acquiring certain lands, including that of the petitioners. Sub-sec. 41 prescribes that the land shall, on and from the date on which the notificatiion is published , vest absolutely in the State Government free from all encumbrabces. In DEc. 12, 1980, the notice was issued under sub-section (1) of s. 42 of the ACt to the landholders to surrender and deliver possession to the Collector of Pune within a period of thirty days. In Jan 1981, the petitioner lodged their objection on the ground that Survey No. 28 of village Bhushi was not includued in the notification published in the Gazette, as survey No.28 described is of village Maval. In puprsuance oto the objection lodged by the petitioner of May, 15, 1981 the State Government published a corrigendum making the requisite a fresh notice for delivery of possession was issued. The petitioners thereafter filed the present petition in this Court on Dec.17 1981.

(3.) The petitioner claim that there was no material before the State Government to exercisse powers under s. 41 of the Act, and therefore, thre notification issued under Section 41 was illegal and bad in law. There is no merit whatsoever in this submission. In along with the showing the area to be acquired after assessing the requirement of the area and also the requirement of the housing accommodation. In view of this return, it is not possible to hold that exercise of powers by the State Government under Section 41 of the Act was illegal. The petitioner also claim that the notification has been issued in breach of rules of natural justice as the petitioner were never served with any notices. The grievance is that though the predecesspor of the petitioner Mohonlal died on May 18, 1976 the notices were issued in the nameof deceased Mohanlal land not in the name of the petitioner although their name of the recorded in the Record of Rights. There iis no merit in this submision, because in pursuance of the notice issued unde the proviso to sub section (1) of the S. 41 of the Act on Aug 21, `1979, petitioner 3 appeared before in the Authorities and lodged the protest on behalf of thepetitioner n Sept 6 1979. It is not in dispute that he petitioner not only lodged their objections but participated in the proceedings and were personally heard by the Collector before publiscation of notification under sub-case. (1) of S. 41 of the ACt acquiring thelands. In the circumstances, the petitioner suffered no prejudice whatsoever because of notices being issued the name of deceased Mohanlal. Survey No.28 of village Bhushi was not notified for acquisistion, but this submission was not pressed on May 15, 1981.