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Mahendralal Kanaiyalal and anr. Vs. the Additional Special Land Acquisition Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal Nos. 429 to 434 and 951 to 955 of 1975 with Cross Objections and F.A. No. 1067 of 1975
Judge
Reported inAIR1983Guj30; (1982)2GLR431
ActsBombay Town Planning Act, 1954 - Sections 2(4), 7, 11 and 84; Land Acquisition Act, 1894 - Sections 4, 6, 6(1), 10(2), 10(3), 11(1), 11(2), 11(3), 16, 17, 23 and 81; Bombay Provincial Municipal Corporation Act, 1949; Gujarat Municipalities Act, 1973; Bombay District Municipal Act, 1901; Gujarat Panchayats Act, 1961; Bombay Town Planning (Amendment) Act, 1955 - Sections 81 and 84
AppellantMahendralal Kanaiyalal and anr.
RespondentThe Additional Special Land Acquisition Officer and anr.
Appellant Advocate V.S. Parikh,; C.M. Trivedi,; J.M. Patel, Advs. for;
Respondent Advocate R.M. Vin, Govt. Pleader and; Smita Shah, Adv. for; Sures
DispositionAppeals dismissed
Cases ReferredState of Gujarat v. Shantilal
Excerpt:
.....- acquisition - sections 11 and 84 of bombay town planning act, 1954 and sections 4 and 6 of land acquisition act, 1894 - whether market rate should be considered as it prevailed on date on which notification under section 6 was issued - benefit of section 6 can be availed by claimants if acquisition is by local authority or state government issued notification under section 6 - section 11 and 84 not applicable. - - 10(1) xxx (2) where the development plan submitted, by the local authority contains any proposals for the reservation of any land for a purpose specified in clause (b) or (e) of section 7 and such land does not vest in the local authority, the state government shall not include the said purpose in the development plan unless it is satisfied that the local authority..........act, 1894 was issued. here we may repeat and mention that notification under section 4 of the land acquisition act, 1894, was issued on 20th nov., 1969 while notification under section 6 of the land acquisition act, 1894, was issued on 9% september, 1971. there was thus a difference of a fairly long period and therefore this point was vehemently urged and using one date or the other was bound to make some difference in regard to the market rate according to the submissions. therefore it is necessary to decide this question first.4. we have already stated that while preparing the development plan, reservation was made under section 7(d) of the bombay town planning act, 1954, for the purpose of gujarat housing board. on behalf of the appellants it was submitted that in view of section.....
Judgment:

Talati, J.

1 and 2. x x x x

3. We may mention that a common law point was raised on behalf of the appellants and it was submitted that the market rate should be considered as it prevailed on the date on which the notification under Section 6 of the Land Acquisition Act, 1894 was issued. Here we may repeat and mention that notification under Section 4 of the Land Acquisition Act, 1894, was issued on 20th Nov., 1969 while notification under Section 6 of the Land Acquisition Act, 1894, was issued on 9% September, 1971. There was thus a difference of a fairly long period and therefore this point was vehemently urged and using one date or the other was bound to make some difference in regard to the market rate according to the submissions. Therefore it is necessary to decide this question first.

4. We have already stated that while preparing the development plan, reservation was made under Section 7(d) of the Bombay Town Planning Act, 1954, for the purpose of Gujarat Housing Board. On behalf of the appellants it was submitted that in view of Section 11 of the Act which is required to be read with the schedule, the appellants would be entitled to get the market rate as on the date of the issuance of notification under Section 6 of the Land Acquisition Act, 1894. To determine this question it is necessary to reproduce Section 11 of the Act which runs as under:

'11. (1) The local authority may acquire any land designated in the development plan for a purpose specified in Clauses (b), (c), (d) or (e) of Section 7 either by agreement; OB under the Land Acquisition Act, 1894.

(2) If the land is acquired under the Land Acquisition Act 1894, the provisions of the said Act as amended by the Schedule to this Act shall apply to the determination of compensation for the acquisition of such land.

(3) If the designated land is not acquired by agreement within ten years from the date specified under Sub-section (3) of Section 10 or if proceedings under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice to the local authority and if within six month from the date of the service of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have lapsed.' 'Local authority' is defined by Section 2 (4) of the Bombay Town Planning Act, 1954 which runs as under:--

2. (4) 'Local authority' means a municipal corporation constituted under the Bombay Provincial Municipal Corporation Act, 1949, or a municipality constituted or deemed to be constituted under the Gujarat Municipalities Act, 1973 and includes also--

(a) a committee appointed for a notified area under the Bombay District Municipal Act, 1901, which is permitted in this behalf by the State Government to exercise the powers of a local authority under this Act;

(b) a gram or nagar panchayat constituted or deemed to be constituted under the Gujarat Panchayats Act, 1961 which is permitted in this behalf by the State Government to exercise the powers of a local authority under the Act.'

5. Before we go to the Schedule, it is also necessary to reproduce Section 84 of the Act which runs as under:--

'84. (1) If at any time the State Government is of opinion that any land included in a town planning scheme is needed for a public purpose other than that for which it is Included in the scheme, it may make a declaration to that effect in the Official Gazette in the manner provided in Section 6 of the Land Acquisition Act, 1894. The declaration so published shall, not withstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section.

(2) On the publication of a declaration under Sub-section (1), the Collector shall proceed to take order for the acquisition of the land and the provisions of the Land Acquisition Act, 1894, as amended by the Schedule to this Act shall, so far as may be, apply to the acquisition of the said land.

(3) In the proceedings under the Land Acquisition Act, 1894, the local authority concerned shall be deemed to be a person interested in the land acquired and in determining the amounts of compensation to be awarded to the local authority the Collector or the Court, as the case may be, may take into consideration the value, if any, paid by the local authority for the acquisition of the said land under Section 81 or otherwise and the proportionate cost of the scheme, if any, incurred by the local authority and rendered abortive by reason of the variation of the scheme on account of such acquisition.

(4) On the land vesting in the Government under Section 16 or 17 of the Land Acquisition Act, 1894, as the case may be, the scheme shall be deemed to have been suitably varied by reason of acquisition of the land.' The reproduction of the above two sections is necessary because when one goes to the Schedule one finds that the Schedule of the Land Acquisition Act, 1894, stands amended as per Sections 11 and 84 and the schedule reads as under:

SCHEDULE

(See Sections 11 and 84)

Amendments to the Land Acquisition Act,

1894.

1. For Section 23 of the Land Acquisition Act, 1894 (hereinafter called the 'said Ad', the following shall be substituted, namely:--'23. (1) In determining the amount of compensation to be awarded for the land or any interest therein acquired under this Act, the Court shall take into consideration the following :--

(1) the market value at the date of the publication of the declaration under Section 6.....'

Now the whole argument is based on the amendment by the Schedule so far as the Land Acquisition Act, 1894, is concerned and in particular Section 23 of that Act. The difficulty which the appellants experienced at the time of advancing that argument was that Section 11(1) of the Act started with the words 'the local authority may acquire', etc. New therefore, they realised that this acquisition was not by the local authority but by the Gujarat Housing Board and therefore they submitted that so far as Section 11(2) of the Act is concerned, it should be read in such a manner that so soon as the land is acquired under the Land Acquisition Act, 1894, from the lands which are designated for a specific purpose in the development plan under any of the Clauses (b), (c), (d) or (e) of Section 7, the Compensation should be worked out as per the Schedule, as, according to the appellants Section 11(2) of the Act would be attracted even if the lands were not acquired by the local authority and were acquired by some other authority. According to the submissions made, what was necessary was that there should be a development plan. In that development plan if the lands are specified or designated for a purpose which is specified in Clauses (b), (c), (d) or (e) of Section 7 of the Act, it is sufficient and the acquisition could be by a local authority or by any other authority. The result would be that the Schedule will come into operation. To advance this argument further our attention was drawn to Section 10(2) of the Act which runs as under:

'10(1) xxx

(2) Where the development plan submitted, by the local authority contains any proposals for the reservation of any land for a purpose specified in Clause (b) or (e) of Section 7 and such land does not vest in the local authority, the State Government shall not include the said purpose in the development plan unless it is satisfied that the local authority would acquire the land whether by agreement or compulsory purchase within ten years from the date on which the development plan comes into force.'

Section 11(3) which we have reproduced earlier was also read before us. Having considered and having given our anxious thought to this argument, we may only say that we are unable to agree to the submissions made for the reasons that will follow. Section 11 of the Act is required to be read as a whole. Section 11(2) of the Act cannot be read in isolation. One has always to remember that when lands are designated under any of the Clauses (b), (c), (d) or (e) of Section 7 of the Act, the lands so specified could be required by the local authority or by any other authority for which the lands are so specified. In this case the reservation was under Section 7(d) of the Act. The reservation was for Gujarat Housing Board. It was not for a local authority. Section 84 of the Act clanged that 'if any land is included in a town planning scheme is needed for a public purpose other than that for which it is included in the scheme, it may make a declaration to that effect in the Official Gazette in the manner provided in Section 6 of the Land Acquisition Act, 1894'. Now therefore, this was not a case where the lands were specified for some purpose and they were needed for some other purpose. The lands were so specified clearly that they were needed for Gujarat Housing Board. They were not needed for any other purpose. It was clear that the local authority never wanted to acquire that land. Section 11(3) of the Act makes it clear that 'if the designated land is not acquired by agreement within ten years from the date specified under Sub-section (3) of Section 10 or if proceedings under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice to the local authority and if within six months from the date of the service of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have lapsed'. Now this notice is required not for the lands needed by the local authority but this notice is required to be given in regard to the designated land and it could be given by the owner or any person interested in the laid. Now therefore, Section 11(3) of the Act refers to the designated land. Now that designated land can be acquired by a local authority or by some other authority for whom the reservation is made, If Section 11 of the Act is read as a whole, it is clear that it is only when the local authority acquires the land, the Schedule would come into operation. The reason is obvious. As soon as the development plan is prepared and the designated land is reserved for some purpose, everybody knows that the designated land is required by a particular authority. Now, if therefore the local authority requires it, the rate that would be given would not be the rate of the finalisation of the development plan but the rate on which the notification under Section 6 of the Land Acquisition Act is issued. The same would be the case where the purpose is changed under Section 84 of the Act. Now the lands under Section 7 (b), (c), (d) or (e) of the Act could as well be acquired for other authorities. They could be so reserved. Now those authorities can never get issued any notification under Section 6 of the Land Acquisition Act unless a notification under Section 4 of the Land Acquisition Act is issued. It is true that in a case of this nature also the persons interested in the land are not deprived of any benefit because as soon as the lands are reserved for Gujarat Housing Board, though persons interested cannot without the permission use that land for any other purpose, their interests are safeguarded in two ways. Firstly, the compensation would be worked cut only from the date when the notification under Section 4 of the Land Acquisition Act is issued which could be on any date within a period of 10 years. Again if the notification is not issued, they are entitled to give a notice and ultimately the reservation would lapse and if during that period, the prices have undergone a change, they would get the benefit. In no case they would be losers. Their interests are sufficiently safeguarded. Merely because the lands are reserved for Gujarat Housing Board, it may not follow that Gujarat Housing Board may ultimately decide to acquire the land. It may be that they may not acquire the land at all for various reasons because several factors might intervene. But the day they decide and get the notification issued under Section 4 of the Act which may be after a period of two years, or five years, the benefit to the claimant of those years does accrue because the price would be from that date. It is only when the local authority acquires the land, the question of notification under Section 6 of the Land Acquisition Act under the Schedule would arise because the development plan itself would serve as a notice that the lands are required by the local authority. We may here refer to certain observations of the Supreme Court in the case of K. L. Gupte v. Municipal Corporation, Greater Bombay, reported in AIR 1968. SC 303. In para 14 of that judgment it has been observed as under:

'The idea behind this Sub-section is that If any land is to be set apart for public purposes such as parks etc. mentioned in Clause (b) of Section 7 or any other public purpose which might be approved by a local authority or directed by the State Government in terms of Clause (e) of Section 7, the State Government must examine whether it would be possible for the local authority to be able to acquire such land by private agreement or compulsory purchase within a period of ten years. This acts as a check on the local authority making too ambitious proposals for designating foods for public purposes which they may never have the means to fulfil. It is obvious that the local authority must be given a reasonable time for the purpose and the legislature thought that a period of ten years was a sufficient one. Section 11(1) empowers the local authority to acquire any land designated in the development plan for a purpose specified in Clause (b) (c), (d) or (e) of Section 7 either by agreement or under the Land Acquisition Act. Under sub-section (2) of Section 11 the provisions of the Land Acquisition Act of 1894 as amended by the Schedule to the Act are to apply to all such acquisitions. The Schedule to the Act shows that Section 23 of the Land Acquisition Act is to stand amended for the acquisition under this Act with regard to the compensation to be awarded. In fact it is for the benefit of the person whose land is acquired, as he can get the market value of the land at the date of the publication of the declaration under Section 6 of the Land Acquisition Act in place of Section 4. Subsection (3) provides that if the designated land is not acquired by agreement within ten years from the date specified under sub-section (3) of Section 10 or if proceedings Under the Land Acquisition Act are not commenced within such period, the owner or any person interested in the land may serve notice to the local authority and if within six months from the date of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have lapsed. This provision again is for the benefit of the owner of the land for unless the land is acquired or steps taken in that behalf within the fixed limits of time, he ceases to be bound by the designation of his land as given in the development plan.' To our mind therefore Section 11 of the Act contemplates only acquisition by the local authority and by no other authority for whose benefit the lands might have been reserved. We may also refer to another case State of Gujarat v. Shantilal, reported in AIR 1969 SC 634. In paragraph 53 of that judgment the observations made are as under: 'Our attention was invited to Sections 81 and 84 of the Bombay Town Planning Act 1955. Section 81 merely provides that the land needed for the purpose of a town planning scheme or development plan shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. This provision only declares what is implicit in the scheme of the Act. Section 84 only contemplates a special class of cases in which the land which is included in a town planning scheme is needed by the State Government for a public purpose other than that for which it is included in the scheme. In such a case the State Government may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894, as modified by the Schedule apply. We are not concerned in this case with any such notification issued by the Government, nor has it any relevance to the question in issue.'

Thus, reading Sections 11 and 84 of the Act with the Schedule, it makes it abundantly clear that the benefit of Section 6 notification would only be availed of by 'he claimants if the acquisition is by a local authority or the State Government changes the public purpose and after changing the purpose, issues a notification under Section 6 of the Land Acquisition Act, 1894 but if the State Government does not change the purpose and the purpose remains the same as in this case and the Gujarat Housing Board for whose benefit the lands were reserved, they only get the lands but the purpose cannot be said to have been changed and therefore it is neither a change in purpose nor an acquisition by a local authority and therefore Sections 11 and 84 of the Act would not apply and when Sections 11 and 84 of the Act do not apply, the question of applying the schedule does not arise.

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