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Madhav Gopalrao Sanap Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 1408 of 1983
Judge
Reported inAIR1985Bom239; 1985MhLJ636
ActsLand Acquisition Act, 1894 - Sections 11, 23, 24 and 34; Constitution of India - Article 226
AppellantMadhav Gopalrao Sanap
RespondentState of Maharashtra and ors.
Appellant AdvocateJ.N. Chandurkar, Adv.
Respondent AdvocateW.M. Sambre, Govt. Pleader
Excerpt:
..... 6. having considered the order-sheets available on record, it is clearly seen that making of the award was delayed right from 9-2-1973 only because allotment of funds for payment of compensation was not being received. it is clearly to cover the period of delays the provision is made for payment of interest. 34 of the act, therefore, is an equitable one and can well be extended to such type of situations where the delay is occasioned clearly to the prejudice of the party by reason of administrative inaction such as non-placement of funds .it is not as if that the state is not possessed of the funds; that would cover the field of law as well of equity. 11 would not assist authority to make the award inclusive of interest for such failure to have the allotment of funds ,but that does not..........case was taken after three years in the year 1973. spot was also inspected and after12-9-1974 the award proceedings were adjourned from time to time because allotment of necessary funds for compensation was not available. eventually the award appears to have been made on 28-3-1983. thus the offer that is required to be made by passing the award under s. 11 of the act was finally made by this date.2. against the background to these facts mr. chandurkar, learned counsel appearing for the petitioner, argued that the petitioner had no notice of the award proceedings for, he was an adopted son of gopalrao sanap, and by reason of the ante-adoption gift the property came to him. thus for the person interested, unless specific notice was given all these proceedings would be vitiated for want of.....
Judgment:

Masodkar, J.

1. this petition questions the process of the land acquisition with regard to which S. 4 notification was issued on Dec. 17, 1968. The land to the extent of 18 acres 3 gunthas was needed for the purpose of government Polytechnic to be established at Yavatmal. Eventually after holding enquiry, S. 6 notification came to be issued on Jan. 13, 1970. It appears from the proceedings that S. 9 proceedings were initiated thereafter and on 25-5-1970 claims statements were taken. The petitioner is claiming through claimant Gopalrao Sanap. By the end of 1970 recording of evidence was also completed. Thereafter the case was taken after three years in the year 1973. Spot was also inspected and after12-9-1974 the award proceedings were adjourned from time to time because allotment of necessary funds for compensation was not available. Eventually the award appears to have been made on 28-3-1983. Thus the offer that is required to be made by passing the award under S. 11 of the Act was finally made by this date.

2. Against the background to these facts Mr. Chandurkar, learned counsel appearing for the petitioner, argued that the petitioner had no notice of the award proceedings for, he was an adopted son of Gopalrao Sanap, and by reason of the ante-adoption gift the property came to him. Thus for the person interested, unless specific notice was given all these proceedings would be vitiated for want of notice. Secondly, he contended that even assuming that the petitioner was not so entitled to individual notice and his interests were sufficiently represented by Gopalrao Sanap, the very fact that 15 years elapsed from the final notification under S. 4 which was made in the year 1968 was indicative tat the public purpose of which the acquisition was resorted to was no more in existence; at least it was illusory and the proceedings, therefore, should be quashed. Alternatively, the counsel submitted that by reason of delay which is apparent on the face of record, the award itself in the sum of Rs. 36,375/- is hardly a just and reasonable compensation. He submitted that if the record is seen there was no reason not to declare the award at least after 1973 and the delay between 1973 to 1983 cannot go to the prejudice of the claimant.

3. As against this submission Mr. Sambre pointed out that Gopalrao Sanap participated in the proceedings right from the stage of S. 5A and that the property stood in the name of Gopalrao Sanap himself notwithstanding the ante-adoption agreement. He further submitted that only because there is delay in making the award, that is no reason to presume that the public purpose is not in existence. As far as the delay in passing the final award between the period 1973 to 1983 is concerned the counsel submitted the delay was caused sue to the administrative reasons.

4. Having considered both these competing submissions we do not think that the first two submissions of Mr. Chandurkar can prevail. As the admitted position stands the property belonged to Gopalrao Sanap he has been given due notice. Not only he participated in the proceedings right from the stage of hearing objections but also making the award. There is nothing on record to show that the ante-adoption agreement gifting the property to the petitioner was brought to the notice of the authorities. So also we do not think that some delay in making the award can affect the public purpose.

5. Now it appears to be true that by reason of the final award made under S. 11 in the year 1983, the amount awarded has a reference to the position as was available on the date of S. 4 notification. There is no provision directly covering such type of cases where the administrative delays postpone the making of the offer under S. 11 of the Act. As far as the quantification of the award is concerned, that can be questioned by taking reference under S. 18 of the Act, but the determination of that reference too has the point of reference of S. 4 notification.

6. Having considered the order-sheets available on record, it is clearly seen that making of the award was delayed right from 9-2-1973 only because allotment of funds for payment of compensation was not being received. There is no other reason available on record as to why the award could not have been made in the month of Feb. 1973 itself when the spot was seen and the matter appears t have been closed. We have the order sheet of 17-2-1973 which speaks of spot seen. Thereafter the matter is taken upon 12-9-1974 which says that spot note does not seem to have been recorded and further that allotment is still awaited from the Government. The case then was not taken up till 31-3-1975 and on that day the order is, to keep the matter pending till receipt of allotment from the Executive Engineer. Thus it is obvious from the record that had the allotment been there, the award would have been made in the year 1973 itself .

7. Undoubtedly the petitioner remained in possession all through these 10 years. But the fact remains that the quantum has been fixed and adjudicated with reference to the position of the year 1968. The quantum could have been fixed in the year 1973, but has been delayed by 10 years and is only fixed on 1983.

8. Section 34 of the Land Acquisition Act covers cases when the amount of such a compensation is not paid or deposited on or before taking possession of the land and directs the Collector to pay the amount with interest at the rate of 4 per cent per annum from the time of so taking possession until it shall have been so paid or deposited. The principle underlying is that the party dispossessed should not also be subjected to the pecuniary loss and should receive interest as the part of the compensation. This shows that compensation can be in two parts, one by quantification by applying the principles available in Ss. 23 and 24 and another by reason of S. 34 of the Act. It is clearly to cover the period of delays the provision is made for payment of interest. The principle underlying S. 34 of the Act, therefore, is an equitable one and can well be extended to such type of situations where the delay is occasioned clearly to the prejudice of the party by reason of administrative inaction such as non-placement of funds . It is not as if that the State is not possessed of the funds; it is merely the case that a particular departmental allotment was not received by the given authority. When possession is taken matter is pronouncing clear so as to augment compensation by providing interest. All this flows from basic considerations to the effect that as the compulsive process of acquisition of property ensues, that arises a clear corresponding entitlement in favour of the citizen whose property is subject to acquisition so as to receive just and fair return styled as compensation. By reason of administrative delays if any loss were to be suffered, we think that award of interest takes care of the same. The principle that underlies S. 34 can therefore always be available so as to meet the ends of justice.

9. Equity would require that no party should suffer by such administrative of executive delay. Had the allotment been placed, there would be no de4lay in making the offer, much less a delay over almost 10 years. It is no fault of the claimant that such allotment was not received had the allotment been available in the very month of February 1973, will have to be treated as a point of reference for the purpose of working out equitable result. No doubt the scheme for acquiring property and provision, therefor, are the matters of legislative enactment. As far as possible when express enactment exists, it would be impermissible for the Court to apply principles of equity so as to override the express provisions. But when the area is not covered by legislative enactment, the Court's jurisdiction in equity would not be barred. Such a jurisdiction can be exercised even while considering the matters under Art. 226 of the Constitution. In this extraordinary jurisdiction power is conferred to give directions. That would cover the field of law as well of equity. Depending upon the exigencies of the case, Court would be entitled to work out reliefs.

10. The authority which has been empowered to proceed in the matters of acquisition imperatively is charged with duty to act fairly and not to the prejudice of the subject. This duty to act in consonance with fairness even operates in the matters of making awards and consequent offer under S. 11 of the Land Acquisition Act. it is possible that as there is no express provision in spite of such delay S. 11 would not assist authority to make the award inclusive of interest for such failure to have the allotment of funds , but that does not affect the power of the Court to make appropriate award in such matters.

11. In equity it would be regarded as done which ought to have been done, though the principal in this regard applies to contracts as well as to trusts : See De Beers Consolidated Mines Ltd. v. British South Africa Co. (1912) AC 52, Re Raw. Morris v. Griffiths (1884) 26 Ch D 601 and Re Goswell's Trusts (1915) 2 Ch 106. This equitable principle of working out results on the basis that what was required was already done can well be extended to situations when there is imperative duty to act in a particular manner by reason of law. The injunction of the statute is obvious and clear. The same cannot be defeated by merely non placement of funds at the disposal of the authority who is charged with duty to work out the offer to all interested persons under S. 11 of the Act. No doubt in such cases the person concerned is not immediately dispossessed, but that is no reason to overlook the omission and inaction on the part of authority or the duty imposed by law. Whole process is of composite character and should not operate to the prejudice of the party and his property. It is well known that acquisition freezes the property in value to the date of S. 4 notification. Often prejudicial effects ensue including stoppage of growth and development. It is necessary, therefore, to afford relief in an equitable way.

12. Taking this view, we direct that the amount of compensation offered under S. 11 in the sum of Rs.36,375/- will carry interest at 4 per cent per annum from February 1973 till March 1983.

13. With these directions, rule to stand discharged. No costs.

14. Order accordingly.


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