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A.C.P. Wadia and ors. Vs. Special Land Acquisition Officer (2) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 803 of 1980
Judge
Reported inAIR1981Bom278
ActsConstitution of India - Article 226; Land Acquisition Act, 1894 - Sections 4, 6, 9, 10, 12(2) and 31; Salsette Estates Abolition Act
AppellantA.C.P. Wadia and ors.
RespondentSpecial Land Acquisition Officer (2) and ors.
Appellant AdvocateA. Thakker and;N.G. Thakker, Advs.
Respondent AdvocateV.N. Lokur and;R.P. Vyas, Advs.
Excerpt:
a) the case dealt with the consent decree that declared the government would hold the enquiries as per the land acquisition act and pay the compensation as available under the act - the court held that the remedy under article 226 of the constitution of india compelled the performance of the mandatory public duty under statute, and it would not be barred by such decree. ; b) the writ was filed to compel the land acquisition officer to make the award in respect of the land sought to be acquired and thereby carry on his statutory duty - the court held that the acquiring body was not the necessary party since its rights were neither affected nor sought to be affected. - .....of village kurla was proposed to be acquired as per notification issued under section 4 of the land acquisition act, 1894 published in the bombay government gazette dated 18-6-1953. almost simultaneously the physical possession of the land was taken by the respondents. after the issue of a notification under section 6 dated 30-7-1953 and necessary notices under sections 9 and 10 dated 31-8-1953 the petitioners filed their claim for compensation on 23-11-1953 claiming a sum of rs. 2,86,592-00.3. in the meantime an act which is known as salsette estates abolition act was passed abolishing certain type of grants under which the lands were held. petitioner's lands also were sought to be covered by the said act. disputes arose about the validity and also the effect of the said act.....
Judgment:
ORDER

1. This is another of the several matters which have recently came before this Court involving complete and shocking disregard on the part of the Government and its officials, of the rights of not only the citizens but also of Public Charitable Trusts, whose interest they are bound to protect. I have only today a little earlier disposed of another matter showing a similar behaviour of the State Officials, Not only does this matter disclose such a shocking behaviour on the part of the State but what is more pernicious is the attempt to oppose the highly just claims on hyper technical grounds which are dealt with later in this judgment.

2. The land of the petitioners consisting of Survey No. 292 Hissa No. 1, which is same as S. No. 292A of village Kurla was proposed to be acquired as per notification issued under Section 4 of the Land Acquisition Act, 1894 published in the Bombay Government Gazette dated 18-6-1953. Almost simultaneously the physical possession of the land was taken by the respondents. After the issue of a notification under Section 6 dated 30-7-1953 and necessary notices under Sections 9 and 10 dated 31-8-1953 the petitioners filed their claim for compensation on 23-11-1953 claiming a sum of RS. 2,86,592-00.

3. In the meantime an Act which is known as Salsette Estates Abolition Act was passed abolishing certain type of grants under which the lands were held. Petitioner's lands also were sought to be covered by the said Act. Disputes arose about the validity and also the effect of the said Act resulting in a suit in this Court being Suit No. 921 of 1654 filed by the petitioner against the 1st respondent and on 2-5-1963 a consent decree was passed. Relevant provisions whereof are as follows:

'This Court by and with such consent doth further declare that it is agreed as aforesaid, that as regards such of the lands described in Schedule I hereto as have been acquired, that as under the provisions of the Land Acquisition Act, 1894, the plaintiffs are entitled to receive compensation in respect thereof as the 'owners' of the said land and that the first defendant shall direct the proper Acquisition Officer to hold an enquiry according to the provisions of the Land Acquisition Act, 1894, and award and pay to the plaintiffs such compensation as may be payable to the plaintiffs according to law'.

It is understandable that during this period of about ten years no proceedings were taken for the purpose of making award as required by law.

4. Even before the consent terms were signed, possibly because terms were already agreed upon, making, or passing of a consent decree was merely a formality, the petitioners through their architect addressed letter D/- 17-10-62 to the Special Land Acquisition Officer (2) Bom. and Bombay Suburban District requesting him to proceed with making of the award. It would appear that there must have been some correspondence thereafter and the Special Land Acquisition Officer (2) addressed to the petitioners' Architect a letter dated 15-6-1965 making strange enquiries. He asked for the Government Notification under Sections 4 and 6 of the Land Acquisition Act as also of the office file number etc., of his department. He also asked for the copies of notices issued under Sections 4, 9 and 10 of the Land Acquisition Act as also any other document that would enable him to trace the old file of his department. He also asked for the extract of Record of Rights in respect of the land and also the name of the Acquiring Body. To this a reply was sent by the petitioners and also several meetings appear to have been held which resulted in the letter dated 23-4-1966 from the Special Land Acquisition Officer (2) who stated that it was then found that the S. Number 292A was notified under Sections 4 and 6 of the Land Acquisition Act but because the enquiry under the Saisette Act was pending the land acquisition proceedings and the interest of the Estate holders, if any, was to be acquired. He thereafter proceeds to assert that it was found that S. No. 292A had vested in the Government and therefore the notification was cancelled on 4-1-1954 and stated that the land acquisition proceedings therefore were closed.

5. It is not clear as to what happened thereafter, but it would appear that there was some correspondence as a result of which the Special Land Acquisition Officer (2) addressed a letter dated 26-11-1971, by which again an enquiry was made from the petitioners about the name of the Acquiring Body. It is rather surprising that such an enquiry was made from the petitioners while it is the Special Land Acquisition Officer who, being the authority for the acquisition for the Acquiring Body, should know the name. The petitioners addressed a letter dated 23/24-12-1971 to the Special Land Acquisition Officer (2) saying that, they did not know the name of the Acquiring Body. Thereafter there are two letters dated 17-7-1972 and 11-8-1972 from the respondents saying that the matter was being enquired into followed by the letter dated 17-11-1973 saying that it was revealed that the matter was being dealt with by the Special Land Acquisition Officer (6) and intimated the petitioners that their previous correspondence was forwarded to the Special Land Acquisition Officer (6). This again was strangely followed by a letter dated 5-4-1974 from the Special Land Acquisition Officer (2), though allegedly he had no jurisdiction and the correspondence was passed on to the Special Land Acquisition Officer (6). By this letter the petitioners were requested to extend their co-operation to the Special Land Acquisition Officer (2) for ensuring further disposal of the matter of payment of compensation. It is not understood as to how the files which were allegedly forwarded to Land Acquisition Officer (6) came back to the Special Land Acquisition Officer (2) and how he came to write this letter in spite of he having no jurisdiction as alleged by him in his earlier letter. Thereafter there is another letter of 3-10-1975 from the Special Land Acquisition Officer (2) in respect of this matter asking the petitioners to produce possession receipt and original notice under Section 12(2) of the Land Acquisition Act as they were required to enable the Special Land Acquisition Officer (2) to trace out the case papers in the matter. It is not understood, what the respondents were doing since 1963 or at least since the year 1965 being the date of the earlier letter, for tracing the file, and why he has started tracing the file only in 1975. There is nothing on record to show what happened thereafter till the petitioners addressed a letter dated 6-9-1979. It is clear that the respondents took absolutely no steps to perform their duties and hence forced the petitioners to file this petition.

6. In my view it is clearly a mandatory duty of the respondents to give the award and pay compensation under the Land Acquisition Act within a reasonable time as is now well settled and does not re-quire any elaboration.

7. Mr. Lokur appearing for the respondents has not denied any of the facts and the liability to make the award but as aforesaid taken only hyper technical contentions. The first contention is usual contention of laches which is being repeatedly advanced on behalf of the public authorities especially when there is no defence at all on merits. But in my view the ground of delay has absolutely no substance. On the contrary there is a gross delay on the part of the respondents. The next contention advanced is that the petition under Article 226 is not proper remedy and proper remedy is execution of aforesaid consent decree passed in the year 1963. This contention also has no substance. The consent, decree only declared that it was agreed between the State of Maharashtra and the petitioners that the State of Maharashtra will direct the proper Acquisition Officer to hold an enquiry according to the provisions of the Land Acquisition Act, 1894 and award and pay to the petitioners such compensation as may be payable to the petitioners in accordance with law. This does not mean that it is an executable decree. The right to obtain a remedy compelling the Special Land Acquisition Officer to carry out its mandatory public duty under a statute is not and cannot be barred by such a decree. The effect of the decree is that the proper officer is to be directed by the 1st respondent to proceed according to law and if the 1st respondent does not do so the remedy to the petitioner to approach the proper Court for proper relief is not taken away.

8. The third point canvassed is that the Acquiring Body should have been joined as a party. In this contention also, there is no substance. The Acquiring Body comes into the picture only after the land is acquired. Apart from this the duty is cast upon the Special Land Acquisition Officer who is in the position of the Collector under Section 31 of the Land Acquisition Act to proceed to make an award and thereby carry out his statutory duty. No rights of the Acquiring Body are affected or sought to be affected. This being so the Acquiring Body is not at all a necessary party.

9. In the circumstances, I make rule absolute in terms of prayer (a) of the petition. I direct that the respondents shall proceed with the enquiry and complete the enquiry proceeding in accordance with law and finalise making of the award and make payment of compensation awarded on or before 8-12-1980. In case the amount is not paid because of non-completion of enquiry or not making of the award or for any other reason, the respondents shall deposit in Court the amount of Rs. 2,86,592/- on or before 20-12-1980 with interest thereon at the rate of 4% per annum from 1st July, 1953 till the date of deposit. The petitioners will be entitled to withdraw the said amount on filing an affidavit giving an undertaking to Court to refund to the respondents the difference between the amount withdrawn and such amount as is finally determined by an award or on a reference as payable to the petitioners as compensation, in case of there being a reference to Court against the award, within 8 weeks after the same is disposed of and in case no application for reference is made within 8 weeks after the time for application expires.

10. This, in my view, is the special case where the Public Charitable Trust has been driven to file a petition by callous negligence of the respondent and incur unnecessary cost. Hence, I direct that the respondents shall pay the costs of the petitioners fixed at Rs. 1,000/-.

11. Petition allowed.


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