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Chunilal Parsuram Vs. Commissioner and Acquisition Officer, Corporation of the City of Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1977Kant83; ILR1976KAR1117
ActsLand Acquisition Act, 1894 - Sections 6, 9 and 49
AppellantChunilal Parsuram
RespondentCommissioner and Acquisition Officer, Corporation of the City of Bangalore and ors.
Appellant AdvocateB. Vedanta Iyengar, Adv.
Respondent AdvocateA. Jagannatha Shetty, Adv. and ;M. Ramakrishna, G.P.
Excerpt:
.....j] applicability of held, to apply article 57 of the limitation act, the suit must one for a declaration that an adoption is invalid. it is only when the prayer in the suit is for a declaration that an adoption is invalid, in such a case article 57 would apply. further, article 57 pre-supposes the plaintiff is directly or indirectly admitting the factum of adoption and a cloud is sought to be created on the right of the plaintiff to claim the property by way inheritance. the suit for partition cannot be treated as one for setting aside the adoption merely because one of the dependant set up a claim so as to attract the article of limitation act. therefore, article 57 is not attracted and the suit is not barred by time. hindu adoptions and maintenance act,1956[c.a.no.78/1956] --..........of the said property was notified for acquisition for a public purpose under section 4(1) of the land acquisition act, 1894 (hereinafter referred to as 'the act'). after an enquiry contemplated under section 5-a, in which the petitioner vainly objected against the acquisition, a declaration as required under section 6 of the act was published. it was followed by service of notice to the petitioner under sections 9 and 10 of the act. in reply to the said notice, he submitted that his entire property should be acquired and the acquisition of a portion of it would leave the rest without any use to him. that objection was raised under section 49 of the act. the land acquisition officer, without noticing the said objection, passed an award, the validity of which is called into question in.....
Judgment:
ORDER

1. Chunilal Parsuram the petitioner is the owner of property bearing No. 31 (old) and New No. 15, Lalbagh Road, Bangalore City. A portion of the said property was notified for acquisition for a public purpose under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). After an enquiry contemplated under Section 5-A, in which the petitioner vainly objected against the acquisition, a declaration as required under Section 6 of the Act was published. It was followed by service of notice to the petitioner under Sections 9 and 10 of the Act. In reply to the said notice, he submitted that his entire property should be acquired and the acquisition of a portion of it would leave the rest without any use to him. That objection was raised under Section 49 of the Act. The Land Acquisition Officer, without noticing the said objection, passed an award, the validity of which is called into question in this petition under Art. 226.

2. The sole question that arises for consideration is, whether the objection raised by the petitioner under Section 49 after the declaration under Section 6 of the Act was tenable and the authorities were bound to act upon it.

3. The answer to the said question depends upon the scope of Section 49 of the Act. The said section so far as it is relevant provides:-

'Acquisition of Part of House or building- (1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desire that the whole of such house, manufactory or building shall be so acquired:

Provided that the, owner may, at any time before the Deputy Commissioner has made his award under Section 11, by notice in writing, withdraw or modify his expressed desire that the whole of such house, manufactory or building shall be so acquired:

Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section, the Deputy Commissioner shall refer the determination of such question to the Court and shall not take possession of such land until after the question has been determined: In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building.'

(rest omitted as unnecessary)

After reading the above provisions, I am firmly of the view, that the contention urged by learned Government Pleader that the petitioner ought to have expressed his desire for acquiring the whole of his property in his objection against the preliminary notification under Section 4(1) of the Act and not after the declaration under Section 6 of the Act, is not tenable. If I accept that contention, I would be unduly straining the scope of the section and unnecessarily limiting the right of the petitioner. The section begins with a mandate that the provisions of the Act shall not be put in force for the purpose of acquiring a part............ if the owner desires that the whole of such house, manufactory or building shall be so acquired. The provisions of the Act include the provisions relating to the determination of the market value and passing the award. Therefore, if at any time before the award is made, the owner of the building expressed his desire that a part of his building shall not be, acquired but the whole of it should be acquired, the authorities under the Act cannot say that that contention is belated.

4. My view finds support from a Full Bench decision of the Allahabad High Court in Bahori Lal v. Land Acquisition Officer, : AIR1970All414 in which at page 427 at paragraph 28 it is observed thus :

'After the making of' the declaration under Section 6 of the Act, persons interested may not have any right to raise such objections as are, open under Section 5-A but it is wrong to say that they are left only with the right to receive compensation. Under Section 48(1) except in the case provided for in Section 36, the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken. So, even after a declaration under Section 6 has been made, a person interested may raise objections or make representations in consequence of which the Government may ultimately withdraw from the acquisition of the land under Section 48(1). For raising such objections or making such representations no statutory provision is needed under the circumstance stated in Section 49 of the Act, right of objection has been given against partial acquisition. This right can be exercised both after the notification under Section 4(1) and the declaration under Section 6(1) of the Act ...........'

5. In the view that I have taken and since there is no dispute in the case that a portion of the building has been acquired, the award so far as it relates to the property of the petitioner has to be quashed, with liberty to the respondents, to proceed with the matter after considering the objections of the petitioner, if need be, by suitably amending the declaration made under See. 6 (1) of the Act.

6. In the result, the rule is made absolute only to the extent indicated above. The award so far as it relates to the property of the petitioner is quashed, with liberty thus reserved to the respondents.

7. In the circumstances of the case, I make no order as to costs.

8. Order accordingly.


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