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Gurbax Singh and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Nos. 2726 and 2727 of 1969
Judge
Reported inAIR1973P& H310
ActsRequisitioning and Acquisition of Immovable Property Act, 1952 - Sections 3(1); ;Constitution of India - Article 31(2)
AppellantGurbax Singh and ors.
RespondentUnion of India and ors.
Cases ReferredUnion of India v. Kamalabhai Harjivandas Parekh
Excerpt:
.....to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in..........of immovable property act no. xxx of 1952 (hereinafter called the act) was issued to the individual petitioners and other right holders of land by the district magistrate (competent authority) to show cause within 15 days of service of that notice why the land detailed therein be not requisitioned. instead of sending individual objection in response to these notices, the petitioners and a large number of other land holders of village budeh theh and warriach sent a joint representation on 3-10-1968 to the defence minister, objecting to the requisition of this land and praying for its release. copy of that representation was sent to the deputy commissioner (respondent no. 3) on 9-10-1968. the officer-in-charge of the office made this endorsement on the copy of that letter. 'put.....
Judgment:
ORDER

1. This judgment will dispose of two Civil Writ Petitions Nos. 2726 of 1969 and 2727 of 1969.

2. The writ petitioners are residents of village Budha Theh and Warriach, Tahsil and District Amritsar. On 19-9-1968 a notice under S. 3(1) of the Requisitioning and Acquisition of Immovable Property Act No. XXX of 1952 (hereinafter called the Act) was issued to the individual petitioners and other right holders of land by the District Magistrate (Competent Authority) to show cause within 15 days of service of that notice why the land detailed therein be not requisitioned. Instead of sending individual objection in response to these notices, the petitioners and a large number of other land holders of village Budeh Theh and Warriach sent a joint representation on 3-10-1968 to the Defence Minister, objecting to the requisition of this land and praying for its release. Copy of that representation was sent to the Deputy Commissioner (respondent No. 3) on 9-10-1968. The Officer-in-charge of the office made this endorsement on the copy of that letter. 'Put up on receipt of other objections.'

3. In this writ petition under article 226 of the Constitution, the petitioners challenged the requisition of their land under the aforesaid Act, mainly on two grounds--

(i) that the provisions of clause (b) of sub-section (3) of Section 8 of the Act offends Article 31(2) of the Constitution and is therefore, ultra vires, null and void.

(ii) that the petitioners were never given an opportunity of being heard in support of the objections which, according to them, were filed in time in response to the notices issued under Section 3(1) of the Act.

4. Regarding objection No. 1. Mr. Jawand Singh, Advocate has placed reliance on Kamalabhai Harjivandas Parekh v. T. B. Desai AIR 1966 Bom 36. This ruling was, however, affirmed by the Supreme Court, and the decision is reported as Union of India v. Kamalabhai Harjivandas Parekh, AIR 1968 SC 377. The relevant part of Head Note (A) reads as under:--

'Sub-Section (3) of Section 8 of Requisitioning and Acquisition of Immovable Property Act, 1952 leads no choice to the arbitrator as to which of the two modes of assessing the compensation he is to accept. The words sub-section (3) are mandatory and compile the arbitrator to accept only the smaller figure arrived at after assessment on the two modes of valuation.'

'The expression 'have regard to' in sub-clause (e) of sub-section (1) of Section 8 does not give the arbitrator any freedom of considering the two modes laid down in sub-section (3) and accepting the one which he thought fair.'

'Clause (a) of section 8(3) lays down a principle aimed at giving the owner of the land something which approximates its just equivalent on the date of acquisition. Clause (b) however directs the arbitrator to measure the price arrived at in terms of Clause(a) with twice the amount of money which the requisitioned property would have fetched if it had been sold on the date of requisition and to ignore the excess of the price computed in terms of Clause (a) over that in terms of Clause (b). The basis provided by Clause (b) has nothing to do with just equivalent of the land on the date of acquisition nor is there any principle for such a basis. Therefore Clause (3)(b) cannot be said to satisfy requirements of Article 31(2) of the Constitution.'

In view of this Supreme Court ruling Clause (b) of sub-section (3) of Section 8 of the Act must be treated as non est. However, clause (a) of that sub-section is good law and there is nothing to prevent the arbitrator to assess compensation in accordance with that clause. In the instant case, compensation has not yet been assessed. Even possession has not been taken over. The objection is, therefore, merely hypothetical. There is no reason to suppose that the arbitrator would act under clause (b) of Section (3) of Section 8 which was struck down by the Supreme Court.

5. Coming to objection (ii) it may be noted that no objections by the individual land holders to whom notices under Section 3(1) were issued, were submitted. The petitioners along with other land owners of the villages sent a representation to the Defence Minister. Even in the endorsement, by which the copy of this letter signed by the same land-owners, was sent to the Deputy Commissioner,(District Magistrate), no request was made that these objections be considered by the competent authority. In short no objections in accordance with law were ever preferred by the petitioners in response to the individual notices served on them under Section 3(1) of the Act.

6. No other point has been argued before me in this petition, which fails and is dismissed. In the circumstances of the case. I would leave the parties to bear their own costs.

7. Petition dismissed.


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