New Reviera Coop. Housing Society And Another v. Special Land Acquisition Officer And Others

Order

1. Leave granted.

2. It is contended by the learned counsel for the appellants that the delay in making the award renders the proceedings under Section 4(1) and Section 6 declaration lapsed by operation of Section 11-A of the Land Acquisition Act. Unfortunately, this point was not argued before the High Court. Learned counsel contends that this question was raised in the High Court but was not dealt with. It is settled law that this Court would consider only matters dealt with or stated in the order of the High Court. Several grounds might have been raised, but it often times happens that only a few would be argued when the case was heard. We cannot look into the averments made in affidavits filed by the parties in this Court. Under these circumstances, it can be assumed that though the contention was raised, the counsel had not argued the matter. Therefore, we cannot permit the counsel, to raise mixed questions or facts of law or disputed questions for the first time in the appeal.

3. It is next contended that the Land Acquisition Officer awarded at Rs 50 per sq. ft. A total extent of 51,000 sq. ft. land is involved in these proceedings and in the city of Bombay it would be difficult for the appellants to acquire alternative flats with the amount offered by the Land Acquisition Officer. The theory of restitutive compensation is not applicable to determine compensation under Section 23(1) of the Land Acquisition Act 1 of 1894. It is also sought to be contended that the respondents admitted in the affidavit filed in the High Court that the value of the compensation is much more than what was determined by the Land Acquisition Officer. Since reference proceedings are pending in the High Court on the original side for determination of compensation, we decline to go into the question. It is, therefore, argued that a direction may be issued not to have the appellants ejected till the reference proceedings become final. We cannot accede to the contention. Once the award has been made and compensation has been deposited or paid under Section 31 of the Act, the Land Acquisition Officer is entitled to take possession and the possession thereby taken stands vested in the State under Section 16 of the Act free from all encumbrances. Under those circumstances, we cannot give the direction sought for. The appeal is accordingly dismissed. No costs.

4. It is needless to mention that a request may be made to the learned Judge of the original side to dispose of the reference application as expeditiously as possible.

CA @ SLP (C) No. 13371 of 1993 and WP (C) No. 853 of 1993:

5. Leave granted. The appeal and the petition are disposed of together.

6. The only controversy raised in these cases is whether Article 21 of the Constitution would apply when the land is acquired by the State exercising its power of eminent domain. Admittedly, New Riviera Coop. Housing Society, Bombay consists of several flats which was notified for acquiring the land for public purpose. Flat No. 27 which belonged to the appellant is part of the above flats. Consequent to the notification published under Section 4(1) of the Act followed by declaration under Section 6, the Land Acquisition Officer made his award under Section 11 on 22-1-1993. He determined the compensation at a sum of Rs 13,11,299 for the entire building. Dissatisfied with the amount offered by the Land Acquisition Officer, a reference under Section 18 was sought for and the matter is now pending decision in the court for determination of compensation.

7. The appellant herein filed a writ petition contending that the acquisition is violative of Article 21 of the Constitution violating his dignity of person, and deprives his right to shelter and also makes him shelterless. He referred to various steps taken by him to have his title to the flat established. It is not necessary to dilate upon all the details in that behalf. Suffice it to state that as on the date of the notification, he was the owner of Flat No. 27. The question is whether the acquisition offends Article 21. The State with a view to serve public purpose is entitled to acquire the land by exercising its power of eminent domain and the LAO is empowered under Section 23 of the Act to determine the compensation to the land acquired. Under the scheme of the Act if the owner is dissatisfied with the determination of compensation made by the Collector under Section 11, a reference under Section 18 is provided for and the court would, on adduction of evidence by the parties determine proper compensation payable to the acquired land under Section 23(1) of the Act. Burden is on the claimant to prove that the compensation offered is inadequate and seek determination of compensation under Section 23(1).

8. Three decisions of this Court have been cited by the learned counsel for the appellant to which reference is unnecessary for the reason that in none of the cases the question of validity of acquisition by the State exercising its power of eminent domain was put in issue on the anvil of Article 21. All those cases relate to providing alternative sites. Right to shelter is undoubtedly a fundamental right. A person may be rendered shelterless, but it may be to serve a larger public purpose. Far from saying that he will be rendered shelterless this Court did not circumscribe the State's power of eminent domain, even though a person whose land is being acquired compulsorily for the public purpose is rendered shelterless. If that contention is given credence no land can be acquired under the Act for any public purpose since in all such cases the owner/interested person would be deprived of his property. He is deprived of it according to law. Since the owner is unwilling for the acquisition of his property for public purpose, Section 23(2) provides solatium for compulsory acquisition against his wishes. Under those circumstances, it cannot be held that the acquisition for public purpose violates Article 21 of the Constitution or the right to livelihood or right to shelter or dignity of person.

9. In a case where the State comes forward with proposal to provide alternative sites, certainly the court gives effect to that proposal and appropriate directions in that behalf were issued by this Court. But that principle cannot be extended as a condition in every case of acquisition of the land that the owner must be given alternative site or flat. Only exception was as provided in Section 31(3) of the Act which does not apply to the petitioner. If that principle is extended, in no circumstances the State could acquire any land for public purpose. Thus considered, we are of the view that there is no substance in the contention raised by the counsel for the appellant that the acquisition of the land violates his right to life offending Article 21 of the Constitution.

10. It is next contended that the acquisition is vitiated by mala fides. We find no substance in this contention as well. It is true that on the earlier occasion when the flats were requisitioned by the State for public purpose, namely, allotment to officers, Central or State Governments at the instance of the owners, litigation had ended by an amendment to the local Act giving further life for the eviction of the person in possession. It is not necessary in this case to dilate on that aspect of the matter. There was a dispute with regard to the title between the appellant and his predecessor-in-title. That is not a ground to hold that the acquisition is mala fide. As stated earlier, since all the flats including Flat No. 27 have been acquired for public purpose, the question of mala fides does not arise.

11. The appeal and the writ petition are accordingly dismissed but in the circumstances without costs.