Special Land Acquisition Officer ... vs Maharashtra Housing And Area ...
2001 Latest Caselaw 357 Bom

JUDGMENT

A.B. Palkar, J.

1. This is a reference under section 18 of the Land Acquisition Act in respect of a land of which acquisition has been given up afterwards by the Government. Following facts which are more or less matters of record need to be stated in order to appreciate the controversy.

2. Claimant R.J. Copper is resident of Pune. He is owner of land bearing CTS No. 382, Matunga Division, admeasuring 1258.33 sq.meters situated at Antop Hill Road, Wadala. Claimant being resident of Pune could not supervise the land personally and he had also come to know that it was being trespassed by anti-social elements. Therefore, he decided to dispose of the land and had approached certain agents. He had received some offers. However, on 1-7-1962 a notification was issued under section 4 of the Land Acquisition Act that the land was required for carrying out housing scheme of Maharashtra Housing Board and as such for public purpose and was decided to acquire. In view of this claimant could not carry on the negotiations for sale of the said land. Notification under section 6 was issued after six years on 27-1-1968 and after a month a notice under section 9 was served on the claimant on 29-2-1968. The claimant submitted his claim of Rs. 1,50,000/- at the rate of Rs. 100/- per sq.meter. Claimant was informed by the Land Acquisition Officer that in all about 39 plots were under acquisition and there were number of hutments occupying different plot and they being interested persons, the Housing Board was asked to prepare an inventory and it would require good deal of time for hearing number of such persons. After about three years, claimant were informed that the papers pertaining to acquisition was transferred to S.L.A.O.(1), Griha Nirman Bhavan, Bandra, and further correspondence be done with him. Thereafter claimant made several attempts for getting the acquisition proceedings expedited. Even then after lapse of about 12 years no further proceedings had commenced for acquisition and therefore, he wrote to the concerned Secretary to the Government and sent reminders. Although he was informed that the case was under consideration no further action appears to have been taken. Thereafter the Deputy Collector and Competent Authority under the provisions of the Maharashtra Vacant Land (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 sent a notice on 19-11-1977 as to why the land should not be declared as vacant land under the provisions of the Maharashtra Vacant Land Act, 1965, calling upon him to reply within seven days. It was duly replied and thereafter a preliminary notice under the provisions of the aforesaid Act was issued by the Competent Authority, as to why the land should not be declared as slum area under section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. It was also replied and by the said reply it was brought to the notice of the Competent Authority concerned that the occupants are rank trespassers and bootleggers and claimants have no connection with them and he was not recovering any rent from them. He therefore asked the Competent Authority to withdraw the notice. However, the claimant was informed that notice under section 4 of the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971 has been issued on 31-1-1979 declaring the said land as slum area.

3. As no steps were taken by the Special Land Acquisition Officer to acquire the said property and no award was being passed, claimants filed petition bearing No. 677 of 1979 in the High Court on 21-3-1979 pointing out the aforesaid facts and claiming that the compensation payable to the claimants be decided forthwith. This petition was on board on 17-3-1981 when the respondents informed the Court that notification dated 9-3-1981 under section 48(2) of the Act was issued and the acquisition was withdrawn and therefore, the Court passed an order that the petition does not survive and discharged the rule. When claimant applied for damages suffered by him consequent upon of the aforesaid acquisition proceedings, he was called upon to submit claim under section 48(2) of the Land Acquisition Act for compensation and therefore, claimant did submit the claim as required. No action was taken by the Land Acquisition Officer and claimant continued further correspondence without any result whatsoever. Thereafter looking to the apathy of the Government in taking action one way or the other, the claimant filed another Writ Petition No. 1206 of 1982 in June 1982 seeking appropriate direction from the High Court to the Land Acquisition Officer to decide his application for compensation under section 48(2) of the Act and the Court directed by order dated 30-6-1982 the Government to take immediate steps and complete the proceedings expeditiously . In pursuance of this, the Special Land Acquisition Officer declared an award of Rs. 1000/- only payable to claimant rejecting all other claims of the claimant. The compensation being totally illusory and inadequate, this reference has come to this Court.

4. Claimant has claimed compensation on the basis of market value of land at Rs. 100/- per sq. yard which would have fetched Rs. 1,53,300/- and interest at 10% per annum on the said amount for 18 years would have amounted to Rs. 2,75,940/-. According to claimant, since there were negotiations going on he could have sold the land for the aforesaid return at 10% per annum.

5. In this Court, claimant has filed a detailed affidavit which was allowed to be filed by an order of this Court, in view of the fact that he is aged 85 years. He was admitted to the hospital and it was not possible for him to come and give evidence in support of his claim. Claimant has also examined a valuer who was cross-examined by the Government Pleader. However, claimant was unable to appear for cross-examination and as such he could not be cross-examined. In view of this, I have decided to consider the case of the claimant only on the basis of the facts which are matters of record and which arise from out of the correspondence between the claimant and the Government in respect of the land which was proposed to be acquired and which was later on given up by the Government.

6. It is clear from the above statement that the land is situated in a prime locality of Wadala, Bombay and the area is 1258.33 sq.meters. Before the S.L.A.O. the claim put forward by the claimant was Rs. 1,73,069/- at the rate of Rs. 100 per sq.yard which wax inclusive of solatium. The claimant produced a letter from the S.L.A.O. dated 15-7-1967 sent to him by the Asstt. Engineer (Acquisition) of Bombay Municipal Corporation wherein the Corporation had offered to purchase the land at the rate of Rs. 30/ per sq. yard as some part of the land was required for the purpose of public road. The S.L.A.O. found from the letter of the claimant that it was clear that there is no road abutting the land and the land was of Toka tenure and therefore, it involved interest of the Government. According to the S.L.A.O. Toka tenure can be considered at half of the market value. The offer made by the Corporation was ultimately subject to the approval of the Committee of the Corporation and this evidence also pertained to the year 1967. Therefore, on the material date i.e. till 1962, the value of the land would be on much lower side. However, the S.L.A.O. found that since possession was not taken, the claimant was having full benefit of the land and as such he could have used the land to his best advantage and could have developed the land and increased its value. Therefore, the claim of damages is imaginary and the entire claim was rejected by awarding a sum of Rs. 1000/- by way of cost.

7. The only question that arises for determination in this reference is whether the S.L.A.O was justified in rejecting the entire claim of the claimant for compensation and reasonable cost of acquisition proceedings on the ground that possession was not taken by the Government and claimant was free to use the land for any purpose. In this connection, it is necessary to refer to section 48 of the Land Acquisition Act. Section 48 is a special provision which applies to the land, the acquisition of which is given up by the Government at a later stage. Section 48 reads as under:

"48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."

In this connection my attention was invited by the learned Counsel for claimant to a judgment of the Madras High Court in the case of Express Newspapers Ltd. v. State of Madras, . It must be borne in mind that section 48 sub-section (2) specifically provided for compensation in such cases. Argument was advanced before the Madras High Court that section 48(2) refers to notification under section 4(1). The High Court found that sub-section (7) of section 24 inhibits the erection of buildings on the property subsequent to section 4(1) notification and therefore, loss due to inability to execute the plans should be legitimately included in the term damages occurring in section 48(2). In this Court it was contended by the learned Counsel that there were encroachments and slum dwellers had erected hutments on the land in dispute and therefore, claimant could not have put the land to any use and as such S.L.A.O. was justified in rejecting compensation. I am unable to agree with this argument. It must be borne in mind that claimant was deprived of his right to the property for a period of 18 years. Had the claimant not approached the High Court, probably the Government would not have taken any steps even for declaring that the land is not required and acquisition is given up. Claimant was required to file two writ petitions in the High Court firstly because no steps were being taken after the notifications were issued. He was running from pilar to post and therefore, when the First writ petition came up for hearing, a statement was made that the land is now being given up from acquisition. This was in the year 1981. However, even thereafter no steps were taken. He was required to approach the High Court again and file a second writ petition for his claim for compensation under section 48(2) of the Act and in the judgment the High Court has observed while disposing of the second writ petition as under:

"It is difficult to appreciate the prolonged delay on the part of the respondents in not hearing the petitioner's application for compensation and in not declaring the withdrawal award under section 48(2) of the Act. In the first place, though section 4 notification was issued in the year 1962 and section 6 notification in the year 1968, the petitioner's property virtually lay frozen for all the years and ultimately, almost seventeen years after section 4 notification and eleven years after section 6 notification, the petitioner approached this Court as indicated above by way of Writ Petition No. 677 of 1979. It was only when the said petition was about to come up for final hearing, that the respondents chose to issue notification withdrawing from acquisition. Thus from the year 1962 till the middle of 1981 the respondents took no concrete steps to complete the acquisition proceeding and even after withdrawing from acquisition, the respondents as now appears, do not seem to be keen to complete the proceedings under section 48(2) of the Act. It is unfortunate that a citizen has to approach this Court to accelerate work in this behalf on the part of the respondents."

Thus the Government was required to be reminded to accelerate the work. It was also brought to the notice of the S.L.A.O. by the order that the petitioner's property virtually lay frozen for a period of 18 years and that it was after 11 years after notification under section 6, claimant had to approach the High Court and when that petition was on board the respondents chose to issue withdrawal notification. It would therefore not only be total negligence but callous attitude on the part of the Land Acquisition Officer to state in the award that no loss whatsoever having been suffered by the claimant, he is not entitled to any damages. The S.L.A.O. has totally ignored the fact that for a period of 18 years that too due to the lethargy of the Government officials i.e. the concerned Land Acquisition Officer no steps whatsoever were taken in respect of the land of the petitioner. If the land was encroached upon by the anti-social elements, the Government, could have taken steps. If the land was really required for public purpose, it was not a difficult task for the Government to remove the encroachment and to take possession. Merely because the land was acquired and possession was not given up, the Government cannot say that the claimant is not entitled to any compensation. Had there been no provision in the Land Acquisition Act for such cases, the Government could have successfully contended that since no possession was taken, claimant was not entitled to compensation. However, after having delayed the matter even for releasing the land from acquisition and withdrawing acquisition after about a period of 18 years, it does not befit the Government to say that since the claimant was in possession, he is not entitled to any compensation.

8. Having held that the claimant was entitled to compensation, it must be pointed out that there are no sale instances. The claim made before the S.L.A.O. at Rs. 100 per sq.yard is obviously excessive. However, when for a portion of the land the Corporation had offered Rs. 30/- per sq. yard and even if it is accepted to be a land to Toka tenure, the S.L.A.O. should have considered awarding of some reasonable compensation on the basis of at least actual price offered by the Bombay Municipal Corporation. However, it being a Toka Tenure land if the claim of Rs. 30/- was excessive, the S.L.A.O. could have observed so and brought it down at some reasonable rate. Claimant is not entitled to the actual price of the land. But he has to be compensated for deprivation of his right to put the land to some reasonable use and for that if the basis is taken as 50% of the price that was offered by the Municipal Corporation, then in my view it would meet the ends of justice.

9. The expert examined by the claimant has stated in paras 26 and 27 of his report as under :-

"26. As stated above, even if Dr. Cooper had not taken up the development of the land himself by constructing residential buildings, he could have leased it out to an intending developer and considering the lease rent in 1962 at the rate of 6% p.a. on the value of this approximately 1500 s.yds. at Rs. 60/- per s.yds., the lease rent would have worked out to Rs. 5400/- p.a. and consequently the loss of income to Dr. Cooper from 1-7-1962 to 2-3-1981 i.e. for 18 years and months while it was under acquisition proceedings, would work out to Rs. 1,00,800/- which is the monetary loss by way of loss of income which Dr. Cooper has suffered till the date of denotification. In addition to this, Dr. Cooper has suffered the irreparable loss due to the land being encroached upon by unauthorised hutments and becoming a slum.

27. Dr. Cooper could have handed over approximately 750 s.yds. out of this land to the Municipal Corporation for the purpose of the road and even at the rate of Rs. 30/- per sq.yd. as offered by the Municipal Corporation, for that 750 sq.yds. he could have received Rs. 22,500/- which amount is also now a loss to him. In fact, Dr. Cooper or the developer could have opted not to take monetary compensation and instead availed of the benefit of the additional buildability by way of Floor Space Index on that land surrendered to the Municipal Corporation, which could have been more valuable than the sum of Rs. 22,500/- by monetary compensation. There is still the further loss of the remaining 50% of the plot which has now become a total liability to Dr. Cooper, for which also he is required to be compensated."

Now considering that it was a Toka Tenure land even if we accept the value of the plot to be 50%, the same would amount to Rs. 30/- per sq. yards and the return on the lease rent at 6 % per annum would be Rs. 2,700/- per year and consequently for a period of 18 years and 8 months it would be Rs. 50,400/-. Therefore, I am of the view that even though claimant did not make any demand to develop the land for the reason that he was deprived of making any beneficial use of the land for such an abnormally long period, he is entitled to compensation to the aforesaid extent. I would therefore fix the compensation at Rs. 50,400/- and not at Rs. 1,00,800/- as is opined by the valuer.

10. Taking into consideration the above stated return and the fact that the Government authorities were totally callous and unconcerned and did not take any action till the claimant approached the High Court even for releasing the land from acquisition and thereafter also in deciding the claim under section 48 of the Land Acquisition Act, it is necessary to award compensation which I have calculated in the above para. The manner in which an honest tax paying citizen was treated by the S.L.A.O. is to say the least shocking. The land remained under acquisition for a period of 18 years only because of the lethargy of the Government machinery of the concerned officers. The Government has no doubt choice to decide as to whether the land is to be acquired or not but it cannot wait for such an abnormal period and thereafter ignore the entire claim of compensation by stating that the possession was not taken and claimant was not deprived of the enjoyment of the land. Claimant has made it clear that he wanted to dispose of the land and he could have sold the land to any purchaser and could have realised reasonable price thereof, but for the issuance of notification under section 4 of the Act.

11. In addition, the Claimant is also entitled to claim costs. In this particular case, the claimant was required to approach the High Court twice. Therefore, the expenses of litigation in High Court will have to be considered as expenses in defending acquisition proceedings. The claim of Rs. 3,000/- as cost of litigation therefore appears to be just and reasonable. Had he not approached the High Court, the land would have continued to be under acquisition for years to come and no action would have been taken by the concerned Officers of the Government. I am, therefore, inclined to award compensation of Rs. 50,400/- and cost of Rs. 3,000/- to the claimant. Thus the respondents are directed to pay a total sum of Rs. 53,400/- to the claimants and reference is answered accordingly.