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Judgment
This petition, filed by the original land owners of the subject land, seeks quashing of an acquisition notification issued by the State under the
Requisitioning and Acquisition of Immovable Property Act, 1952 (“Actâ€).  The acquisition is of the year 1953 and is challenged in the year
2015.
The short facts of the case relevant for our purposes may be stated as follows :Â
The properties situated at Villages Marol and Sahar, Taluka Andheri, District Mumbai, which are described in the writ petition as ancestral properties
of the Petitioners(“subject landsâ€), were initially requisitioned by the Union of India and subsequently acquired for the purposes of Chhatrapati
Shivaji International Airport (formerly known as Sahar International Airport), which is the only international airport operating in Mumbai. After
following the provisions of the Act, the subject lands, which were originally requisitioned under Section 3 and taken possession of under Section 4 of
the Act, were acquired by the Central Government for the public purpose of airport. The acquisition was by publishing a notice that the Central
Government had decided to acquire the property in pursuance of Section 7 of the Act. The notice was issued in the year 1953. After following
the provisions of Section 8 of the Act, the land owners were paid compensation under Section 9 of the Act. Even that happened as far back as in the
year 1953. Ever since then the Central Government has continued to be the owner of the subject land. The international airport was constructed
and was being operated under the Airport Authority of India till about 2006. By an agreement dated 4 April 2006, titled as Operation, Management
and Development Agreement(“OMDAâ€), between the Airport Authority of India and Mumbai International Airport Pvt. Ltd.  Respondent No.4
herein, the Airport Authority of India granted Respondent No.4Â (which was a company established through the equity of Airport Authority of India
and the other private promoters of Respondent No.4) exclusive right and authority during the term of OMDAÂ to undertake some of the functions of
Airport Authority of India concerning operation, maintenance, development, upgradation, etc. of the international airport and perform services and
activities constituting aeronautical services and nonÂaeronautical services at the airport. It is the grievances of the Petitioners in the present
petition that the development of the international airport in terms of OMDA has been complete. It is submitted that a large part of the land originally
acquired from the land owners, including the Petitioners herein, has been lying unutilised. It is submitted that Respondent No.4 has now invited
interested parties to submit applications for participation in a competitive bidding process for five land parcels forming part of the land of Terminal 2 of
the international airport for commercial exploitation. These land parcels include the subject lands. It is submitted that this commercial exploitation
includes construction of hotels and other commercial and retail outlets, which are not only to be used by passengers using the airport but also people of
Mumbai generally. It is submitted that the land originally acquired for the public purpose of an airport is thus being diverted to purely privateÂ
commercial user. It is submitted that this diversion amounts to an act of fraud. It is submitted that as a matter of general principle bearing on the
State power of eminent domain and its exercise, since this land is no longer to be used for a public purpose, it must be reverted to the original owners,
i.e. the Petitioners.Â
Under the scheme of the Act, if a property, which is requisitioned originally for a public purpose, being a purpose of the Union, is required for a
public purpose, during the time the property is subject to such requisition, the Central Government is empowered, under Section 7 of the Act, to
acquire the same by publishing in the Official Gazette a notice to the effect that the Central Government has decided to acquire the property in
pursuance of that section. Before issuing such notice, the Central Government is required to call upon the owner or any other person, who, in the
opinion of the Central Government, may be interested in such property to show cause why the property should not be acquired and to pass such orders
as the Government may deem fit after considering the cause shown. As soon as a notice to the above effect is published in the Official Gazette, the
requisitioned property, on and from the beginning of the day, on which the notice is so published, vests absolutely in the Central Government free from
all encumbrances. This vesting has clearly occurred in the present case as far back as in 1953.
Mr. Andhyarujina, learned Counsel appearing for the Petitioners, submits that the diversion of any property acquired by the State for a public
purpose to a private and purely commercial user is a fraudulent action and calls for quashing of the acquisition. Relying on the cases of Uddar
Gagan Properties Limited vs. Sant Singh( 2016) 11 SCC Â 378 and Royal Orchid Hotels Limited vs. G. Jayarama Reddy(2011) 10 SCC 608 , learned
Counsel submits that the acquisition notice in the present case deserves to be quashed. Learned Counsel submits that the very fact that the land,
which is to be used for public purpose, is diverted to private use makes out a case of fraud.Â
There is no provision of law, which enables the owner of a land, which is acquired by the State for a public purpose under the Act, to reclaim the
same at any time in future on the ground of its subsequent change of user or on the ground that the original public purpose, for which it was acquired,
is no longer valid or relevant. If the land vests in the State upon notice under Section 7, the State cannot be divested of its title for nonÂuser of
the land for the purpose for which it is required. Even if the land is not used for such purpose, the landowner does not get any right to ask for
revesting of the land in him and to ask for restitution of the possession. This has been explained by the Supreme Court in the context of the Land
Acquisition Act in Northern Indian Glass Industries vs. Jaswant Sing(h2003) 1 SCC 335, by quoting the following observations made by it as early
as in 1976 in Gulam Mustafa vs. State of Maharashtra (1976) 1 SCC 800 Â :
“5. At this stage Shri Deshpande complained that actually the municipal committee had sold away the excess land marking them out into separate
plots for a housing colony. Apart from the fact that a housing colony is a public necessity, once the original acquisition is valid and title has vested in
the municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no
principle of law by which a valid compulsory acquisition stands voided because long after the requiring authority diverts it to a public purpose other
than the once stated in the Section 9(3) declaration.â€
The judgment of Uddar Gagan Properties Limited cited by Mr. Andhyarujina deals with an altogether different situation. The principal
question, which fell for the consideration of the Court in that case, was whether the power of the State to acquire land for a public purpose was being
used to facilitate transfer of title of the original owners to a private builder to advance the business interests of the latter. The land was notified under
Section 6 of the Land Acquisition Act by Haryana Urban Development Authority under the Haryana Urban Development Act, 1977 for
residential/commercial sector in Rohtak, Haryana. The acquisition was not complete and the title did not vest in the State. Whilst the acquisition
proceedings were under way, the appellant, Uddar Gagan Properties Ltd., a builder, entered into collusive agreements with some of the
farmers/owners, whose lands were under acquisition, for development of a colony in accordance with the Haryana Development and Regulation of
Urban Areas Act. After these agreements were entered into, the builder managed to obtain release of the property in favour of the original
owners under Section 48 of the Land Acquisition Act. The land was, thereafter, transferred under the agreements executed by the farmers/owners to
the builder. This was challenged before the Court. The Court essentially came to a conclusion that the entire administrative action in that case could
be held to be vitiated by fraud. The Court held that the State's power of compulsory acquisition could not be used to enable a private party to
acquire title. The Court held that there was abuse of power of the State to acquire land for a public purpose to advance a private purpose. The
Court held that the action of the State and the builder resulting in transfer of land from the original land owners to the builder was without any
authority of law and by colourable exercise of power. In the premises, the Court held the release of land from acquisition as vitiated. The Court
noticed that under the law if, after initiation of acquisition, the acquisition process was not completed, the land would revert back to the person who
owned it on the date of Section 4 notification and not to anyone else directly or indirectly. The Court noticed that this was not what had happened in
the case. These facts have no relation whatsoever to the facts of the present case. In the present case, the lands were acquired in 1953. It is
inconceivable that when the original acquisition was made by the Central Government under Section 7 of the Act, there was any plan for diversion of
use of the land for any private purpose. The subject land was acquired for the airport along with vast tracts of nearby lands. The airport project
may have been completed and the operator of the airport may have been given permission for exploiting unutilised land forming part of the
project for ancillary uses. Such user cannot, in any sense, be termed as fraudulent so as to vitiate the original acquisition of the subject lands.
Mr. Andhyarujina relies on the case of Royal Orchid Hotels Limited and submits that any acquisition, which may be legal originally, may become
illegal by virtue of subsequent events. The reliance on the case of Royal Orchid Hotels Limited in this behalf is clearly misplaced. That was a
case, where the State Government had issued a declaration under Section 6Â in respect of the subject land, which was sought to be acquired for
establishing a golfÂcumÂhotel resort near Bangalore Airport by the Karnataka State Tourism Development Corporation. After issuance of the
declaration, the State Tourism Corporation threw up its hands for want of finance and enlisted the participation of a private builder, one Dayanand Pai,
who made available the necessary funds. Even before the State could take possession of the lands, there were negotiations between Mr. Pai and
the Corporation's Officers. The Court came to the conclusion that the very motive of embarking on the acquisition was to secure the land to Mr.
Pai. The Court found the entire exercise to be a fraudulent and colourable exercise of power. In that context the Court observed that it was no
consolation to say that the owners of the land had accepted the compensation and could not have therefore challenged the acquisition. It is in that
context that the Court said that a fraud unravels everything and upon diversion of the public purpose, the acquisition proceedings were liable to be
quashed and the land liable to be returned to the original land owners in spite of their having earlier accepted the compensation.
No doubt the State cannot divert the use of the land acquired for a public purpose to any private commercial purpose. In the present case, rival
parties have joined issues on the nature of the purpose served by the future exploitation of the subject lands. It is the case of Respondent No.4 and
the Union that the purpose of construction of hotels and commercial establishments near the international airport is nothing but a public purpose.Â
The Petitioners contest this case. It is not, however, necessary for us to consider that aspect of the petition, for whatever be the case, this is not
a proceeding in which the writ court will consider it. If any land, originally acquired for a public purpose, is subsequently fraudulently diverted for a
private purpose, it may be open to any public spirited individual to approach this Court in its writ jurisdiction by filing a public interest
litigation. But that is not how the Petitioners have approached this court. The Petitioners are not guided by any public spirit. The present litigation,
far from challenging the purported illegal diversion of land from a public purpose to a private cause and requiring the State to keep to the public
purpose, seeks resumption of land by divesting the State of its title. That, we are afraid, is not permissible within the writ jurisdiction of this Court.
In the premises, there is no merit in the petition. The petition is dismissed.   Considering the facts of the case, where the very challenge to the
acquisition is laid on an untenable ground and that too after a delay of so many years, we are of the view that the Petitioners ought to be saddled
with costs. Learned Counsel for the Petitioners, however, pleads for leniency. We accordingly award nominal costs of Rs.10,000/Â.
Costs to be paid by the Petitioners to the first Respondent Union of India.