Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2644 OF 2016
LOONKARAN GANDHI (D) THR. LR. …APPELLANT
Versus
STATE OF MAHARASHTRA AND ORS. ...RESPONDENTS
J U D G M E N T
J.K. Maheshwari, J.
1. This appeal has been filed against the order dated
29.09.2009 passed in Writ Petition No. 2022 of 1992 by the High
Court of Judicature of Bombay at Nagpur Bench. The said Writ
Petition was filed by the father of the appellant/land owner (now
deceased) seeking writ in the nature of mandamus to declare the
action of the respondents in taking over possession of the subject
land owned by him pursuant to acquisition made by respondent
no. 2 as illegal, arbitrary and without any authority of law. The
land owner also sought compensation @ Rs. 400500/ per sq. ft.
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2023.09.27
16:04:45 IST
Reason:
with commensurate damages caused on account of mental agony
suffered in last several years, or in alternate, allotment of plot of
1
equal dimension in the same vicinity. During the pendency of the
petition, the original writ petitioner died and his legal heir
(appellant herein) was substituted.
The High Court observed that possession of land was taken
2.
in 1970 and the award in case of other land owners was passed
in year 1986, separating the case of appellant. Therefore, partly
allowing the writ petition, High Court directed respondent nos. 2
and 3 to complete the exercise for grant of alternate plot on or
before 31.01.2010 or otherwise determine compensation on or
before 30.04.2010 and pay damages as per Section 48A of the
Land Acquisition Act, 1894 (hereinafter referred to as ‘LA Act’ ) in
accordance with law.
For ready reference and convenience, hereinafter we shall
3.
refer the deceased father of the appellant as ‘land owner’ ; his
legal heir as ‘appellant’ ; Respondent No. 1/State of Maharashtra
as ‘State’ ; Nagpur Improvement Trust/Respondent No. 2 as ‘NIT’
and Respondent No. 3/Special Land Acquisition Officer as
.
‘SLAO’
4. The facts succinctly stated are that, in an auction dated
26.02.1943 held by the Commissioner Court of Wards, the
2
landowner purchased two plots bearing No. 8 admeasuring 9800
sq. ft. of Khasra No. 35/8 and No. 18 admeasuring 7248 sq. ft. of
Khasra No. 35/9 at Mouza Khamla, District Nagpur, Maharashtra
on payment of Rs. 880/. The said plots previously belonged to
‘ExMalguzar Pande’. The sale deeds of both the plots were
executed by the representative of the Court of Wards in favour of
the landowner on 02.03.1944. Vide order dated 09.05.1962
passed by S.D.O., Nagpur, the revenue records were corrected
and those plots were mutated in the name of the landowner. NIT
required the said land for (hereinafter
‘Ajni Street Scheme’
referred to as ‘Scheme’ ) for which the notification under Section
39 of Nagpur Improvement Trust Act, 1936 (hereinafter referred
to as ‘NIT Act’ ) akin to Section 4 of the LA Act was published on
12.07.1962 specifying Khasra Nos. 35/1 and 35/2 only. The final
declaration under Section 45 of the NIT Act akin to Section 6 of
the LA Act was published on 16.01.1969. After final declaration,
NIT vide letter dated 10.10.1969 requested the State for transfer
of Khasra Nos. 35/1 and 35/2 to it for the Scheme, as it
presumed the land to be Government Nazul land. Sometime in
the year 1970, NIT constructed the road on 5390 sq. ft. of land of
3
Khasra No. 35/8 which included plot No. 8 belonging to the land
owner. Thus, admittedly, after taking of possession of subject
land, road was constructed in 1970 on it and is in public use
since then.
In reply to letter dated 10.10.1969 written by NIT, the
5.
Collector, District Nagpur on 31.05.1972 informed that transfer of
land of Khasra Nos. 35/1 & 35/2 is not possible because it is not
Government land; in fact, the said land belonged to and was
occupied by ExMalguzar Pande. Therefore, NIT was instructed to
submit valuation report of the remaining land. The land owners
also received ‘no objection’ to sell other plot No. 18 of Khasra No.
35/9 from NIT on 21.02.1976 and sold it to one Anil Hinge on
08.03.1976. For the sake of clarity, it is only ‘plot No. 8’, i.e.,
Khasra no. 35/8 which is the subject land in the present appeal
and not plot No. 18 of Khasra No. 35/9.
The first notice dated 18.07.1974 issued by SLAO under
6.
Section 9(3) of LA Act was served to landowner and second notice
dated 07.09.1974 was also served, however, none of the said
notices specified that Khasra No. 35/8 is also under acquisition.
Nevertheless, the land owner without prejudice to his rights, filed
4
his statement of claim in Revision Case No. 8286/7172. The NIT
in reference to its previous letter dated 10.10.1969, again wrote to
SLAO on 02.02.1977, requesting him to determine the interests of
land owners on Khasra nos. 35/1 and 35/2. Thereafter, third
notice dated 18.10.1977 under Section 9(3) of the LA Act was
served to the landowner, however, again there was no mention of
Khasra no. 35/8. In the said scenario, the landowner in reply to
the notice, requested SLAO to discharge his land from the
acquisition proceedings primarily on the ground that Khasra No.
35/8 was not reflected in all three notices. The said prayer was
opposed by NIT by response dated 19.04.1979, contending that
Khasra No. 35/8 was part of Khasra Nos. 35/1 and 35/2.
However, the SLAO vide order date 01.08.1981 separated the
papers of the land owner. It is also on record that NIT in
furtherance to its letter dated 02.02.1977, informed SLAO on
03.11.1981 that proposal for acquisition of Khasra Nos. 35/1 and
35/2 had been submitted and the interest of various persons
shall be determined including the land owner, however, the
proposal with respect to Khasra No. 35/8 was still not submitted.
5
7. The land owner awaiting a proposal from NIT, filed a claim
on 25.11.1981 requesting grant of alternate plot in the same
vicinity on the ground that the possession of his land was taken
in 1970 and as on date, road is already constructed on the same.
In response, NIT vide letter dated 02.06.1982 asked the land
owner to prove his title without considering its own reply dated
19.04.1979. Meanwhile, on 22.09.1986, SLAO passed an award
for adjoining pieces of land in Khasra Nos. 35/3 and 35/4 and
since the papers of land owner were separated, no award was
passed with respect to Khasra No. 35/8. Corrected city survey
record dated 26.09.1986, recording name of land owner in Khasra
No. 35/8 was supplied to him. In view of the corrected records,
landowner again submitted a representation to NIT on
17.01.1987 and requested for alternate plot. In reply letter dated
06.03.1987, NIT informed landowner that plot No. 8 in Khasra
No. 35 belonging to land owner was under acquisition, and
alternate plot cannot be allotted. The land owner was directed to
approach SLAO for compensation for the said plot. Having no
clear response, the land owner sent a legal notice dated
02.09.1987 to NIT and sought details of acquisition proceedings
under which his land was acquired, however, it was of no avail. In
6
the meantime, the land owner made a representation to the
Guardian Minister seeking allotment of an alternate plot, which
was forwarded to NIT. Pursuant thereto, NIT vide reply dated
19.12.1988 to Guardian Minister admitted that the land of the
land owner is under acquisition but grant of alternative plot is not
possible. Be that as it may, correspondences were exchanged and
finally NIT vide letter dated 15.01.1990 apprised the land owner
regarding pending acquisition proceedings of his land. Land
owner again submitted representation dated 25.07.1990 and
09.04.1991 for grant of alternate plot as compensation, but again
to no avail.
8. Aggrieved by the inaction of authorities and delayed
response to his representations, on the advice of the advocate,
land owner filed a complaint before Consumer Forum, Nagpur,
which was withdrawn for want of jurisdiction. Thereafter, the
land owner on 29.04.1992 filed ‘Writ Petition No. 2022/1992’
before High Court of Bombay, Nagpur Bench praying the above
said reliefs. The State did not file any reply, however, SLAO filed a
reply and did not dispute the land acquisition notification for the
Scheme. The issuance of three notices under Section 9(3) of LA
7
Act; the order dated 01.08.1981 passed by SLAO separating the
papers of land owner as evident from the records; the passing of
the award dated 22.09.1986 in the case of landowners of other
Khasra Nos. 35/3 and 35/4 were neither denied nor disputed.
More so, the SLAO in its reply did not raise any plea of delay and
laches in filing the writ petition by landowner.
9. So far as stand of NIT before the High Court is concerned,
the issuance of notifications for land acquisition was not
controverted. It was stated that Khasra No. 35 mentioned in the
final Notification consisted of total area of 8.56 acres of Khasra
Nos. 35/1 and 35/2 out of which, 6.56 acres was Government
land and the remaining land was of ExMalguzar Pande. It was
stated that the west side of High Court Road was laid down in the
compelling public need for the city of Nagpur. All the
communications between NIT, State, SLAO and land owner were
not disputed. It was stated that the request for a grant of the
alternate plot was rightly declined and the order passed by SLAO
on 01.08.1981 was not an order of discharge. Therefore, the land
owner on the anvil of said order cannot contest that his land was
not acquired. The passing of the award on 02.09.1986 for the
8
land of other land holders was not denied. With respect to prayer
for grant of compensation @ Rs. 400 to Rs. 500 per. sq. ft., it was
said that the actual value of land may hardly be Rs. 125 to Rs.
150 per sq. ft. at relevant time, hence, the compensation as
sought is on the higher side. It was lastly submitted that the writ
petition has been filed after inordinate delay, therefore, it ought to
be dismissed on the ground of laches.
10. The High Court by the impugned order partly allowed the
writ petition as referred above. Being aggrieved, the appellant is
before this Court assailing the said judgment. After notice in this
appeal, NIT filed counter affidavit, whereas, the prayer of the
State to file counter affidavit was declined vide order dated
07.12.2012 with the liberty to file additional documents. During
the pendency, the counsel for appellant on 03.07.2013 without
prejudice gave up his claim of alternative plot provided NIT is
prepared to pay compensation as per current market rate. On
request, time was granted to counsel for NIT to seek instructions.
In reply, additional affidavit was filed by NIT stating that
compensation as per market rate is not possible, since it is a
9
public body and informed the award granting compensation @ Rs.
54,717/ has been passed.
11. The appellant filed additional affidavit along with a valuation
report dated 16.07.2013 showing the current market value of
land as in the year 2013 as Rs. 3,93,45,696/. In view of the
inordinate delay in passing of award from the date of notification
and taking over of possession, prayer is made to mould the relief
in exercise of the powers under Article 142 of the Constitution of
India.
After having heard learned counsel for the parties and in the
12.
facts of the case, in our view, the following questions arise for
consideration:
i) Whether the impugned judgment of the High Court
negating the plea of appellant seeking ‘lapse’ of the
acquisition proceedings in terms of Section 11A of LA Act
is liable to be interfered with?
ii) Whether decision of NIT refusing to grant
alternative plot, as directed by the High Court, requires
interference in this appeal?
iii) Whether in the peculiar facts of the case, delay
caused in determination of compensation despite time
10
bound directions by the High Court, what suitable relief
can be granted to appellant?
IN REFERENCE TO QUESTION NO. 1
13. It is not in dispute that the notification was issued under
Section 39 of the NIT Act on 12.07.1962. Although the said
notification is not on record, but looking at the material brought,
it is clear that the land of Khasra No. 35/1 and 35/2 only,
without mentioning Khasra No. 35/8 in the said notification was
proposed for acquisition. The final notification was issued with
same details. The possession of Khasra No. 35/8 was taken in
the year 1970 and the road was constructed on 5390 sq. ft.
utilising the entire land of 9800 sq. ft of the said Khasra. It is
relevant to note that vide Act of 68 of 1984, amendment in the LA
Act was introduced adding Section 11A, whereby passing an
award determining the compensation within period of two years
was made necessary. In case the award has not been passed
within the specified period, it shall result in lapsing of acquisition
proceedings. In the present case, the acquisition was under the
State Act, i.e., NIT Act with the aid of LA Act, however, it’s
applicability in such acquisition requires consideration.
11
14. The said issue of applicability of Section 11A of the LA Act
in an acquisition proceeding carried under NIT Act has been
decided by this Court in the case of
“Nagpur Improvement
Trust Vs. Vasantrao and Others, (2002) 7 SCC 657” , wherein
it was clarified that the subsequent amendment made by Act No.
68 of 1984 will have no effect on the acquisition made under the
State Act, which means the lapsing provision under Section 11A
introduced by Act of 68 of 1984, does not apply to acquisition of
land by Nagpur Improvement Trust under NIT Act. The same
principle has been reiterated in
“Bankatlal Vs. Special Land
Acquisition Officer and Another, (2014) 15 SCC 116” , wherein
it was held that the NIT Act is a complete code in itself, except to
apply the provisions of the LA Act that stood legislatively
incorporated in the said Act, and other provisions would not
apply. It was held that the subsequent amendment made by Act
68 of 1984 inserting Section 11A would have no effect on the
acquisition made under NIT Act.
15. In view of the above, we are of the considered opinion that
the provisions of Section 11A of LA Act which provides for
lapsing of the land acquisition proceedings, would not be
12
applicable where acquisition was made under NIT Act. In view of
the foregoing discussion and settled law, we are of the considered
opinion that the High Court has not committed any error in
negating the plea of lapsing of acquisition proceedings as raised
by the appellant.
IN REFERNECE TO QUESTION NO. 2
By the impugned order dated 29.09.2009 passed by the
16.
High Court, directions were issued to NIT to consider the prayer
for the grant of alternate land to the appellant. The said prayer
was rejected by the Chairman, NIT on 31.12.2009, interalia
stating that grant of alternate land in lieu of compensation is not
possible in the absence of any provisions in the Act. The said
rejection has not been separately challenged by the appellant and
has attained finality. In our view also, the said plea does not have
any statutory backing under NIT Act, therefore, refusal made by
NIT does not warrant any interference. Be that as it may, on
03.07.2013, counsel for the appellant without prejudice to his
right made a statement that to amicably resolve the controversy,
the appellant was willing to give up the claim of grant of alternate
plot provided NIT is prepared to pay the current market price as
13
on 03.07.2013. Thereafter, time was sought by counsel for NIT to
seek instructions. After instructions, NIT filed its response on
02.08.2013 wherein the grant of an alternative plot was denied.
As discussed, after the rejection of the representation to grant
alternate land particularly in absence of any statutory backing,
we are not inclined to entertain the said plea. Nonetheless, the
said prayer was not seriously pressed by the appellant and prayer
was confined to grant of adequate compensation. Therefore,
question no. 2 is answered accordingly.
IN REFERNECE TO QUESTION NO. 3
17. In the case at hand, compulsory acquisition of the subject
land was initiated issuing preliminary notification in 1962 and
final notification in January 1969 under the provisions of NIT Act
with the aid of LA Act. As per Section 59 of NIT Act, for any
scheme, the NIT may acquire the land with the previous sanction
of the State Government under the LA Act as modified by NIT Act.
As per Section 61(b) of NIT Act, for the purpose of acquiring the
land, the provisions of LA Act shall apply subject to further
modifications as indicated in the Schedule. As per Section 67 of
the NIT Act, the provisions of the LA Act are made applicable for
14
determination of award for the land so acquired. The Schedule as
referred to in Section 61 has made the modification in the LA Act.
Some of the modifications made in clause 6 adding Section 17A
and clause 14 adding Section 48A are relevant for the purpose of
this case, in addition to other provisions as referred hereinabove.
Therefore, for ready reference, they are reproduced as thus –
“17A. Transfer of land to Trust –
In every case referred to in section 16 or section 17, the Collector
shall, upon payment of the cost of acquisition, make over change of
the land to the Trust and the land shall thereupon vest in the Trust,
subject to the liability of the Trust to pay any further costs which
may be incurred on account of its acquisition
.”
“48A. Compensation to be awarded when land not acquired
–
within two years
(1) If within a period of two years from the date of the publication of
the declaration under section 6 in respect of any land, the Collector
has not made an award under section 11 with respect to such land,
the owner of the land shall, unless he has been to a material extent
responsible for the delay, be entitled to receive compensation for the
damage suffered by him in consequence of the delay.
(2) 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.
”
Section 67 of the NIT Act makes it clear that for the purpose
of determining the compensation and to pass an award, the
provisions of the LA Act would be applicable. Thus, LA Act has its
application to such extent for land acquired by the NIT subject to
15
the modifications made under the NIT Act. In view of the
provisions of the NIT Act, the preliminary notification of the land
acquisition shall be under Section 39, and the final Notification
shall be under Section 45 for compulsory acquisition as specified
in Section 59 of the NIT Act. It is to be noted here that, Section 16
of the LA Act deals with the power of Collector to take possession
of the land after he has made an award under Section 11 and the
said land shall thereupon vest absolutely in the Government free
from all encumbrances. Section 17 of LA Act deals with the
special powers in case of urgency, but the said provision is not
relevant in the facts of the present case. Further, Section 17A of
the LA Act as modified in the Schedule referred to in Section 61 of
NIT Act adopts the procedure specified in Section 16 or 17 of the
LA Act. Section 17A prescribes that the Collector upon payment
of the cost of acquisition shall make over change of the land to
the Trust and the land shall thereupon vest in the Trust subject
to discharge of liability and payment of any further cost which
may be incurred on account of acquisition. Therefore, the
applicability of Section 11 of LA Act which deals with enquiry and
award, and Section 16 of LA Act which deals with power of
Collector to take possession, even in acquisition under the NIT
16
Act is ‘sine qua non’ . While making an inquiry under Section 11,
the applicability of Section 9 which deals with issuance of notice
to persons interested, is an integral procedure in the proceedings.
Hence, for the purpose of determination of compensation to pass
an award in case of acquisition of land under NIT Act,
applicability of the said provisions of the LA Act has been duly
recognised in Section 67 of the NIT Act.
18. As per Section 16 of the LA Act, the Collector on making an
award may take possession of the land to vest it in the
Government. Similarly, under Section 17A added to Schedule of
NIT Act, passing of an award is a necessary precondition to vest
the land with NIT. Further, Section 48A specifies that if award is
not passed by the Collector within a period of two years from the
date of final notification, the land owner, if not responsible for
delay to a material extent, shall be entitled to receive
compensation for damages suffered by him in consequence of
delay. The said damage would be determined as per the
provisions of PartIII of LA Act.
19. In view of the said basic provisions if we see the facts of this
case, then it is not in dispute that the subject land was occupied
17
by ExMalguzar Pande. The land owner purchased the land in
auction and sale deed was executed in his favour by the Court of
Wards. As per the order dated 09.04.1962 passed by the SDO,
Nagpur, the revenue records were corrected recording his name
before issuance of preliminary notification. In the said notification
as well as in the final notification dated 16.01.1969, Khasra No.
35/8 was not mentioned. The NIT had taken possession and
constructed the road on the west side entrance of the High Court
which is in public use. After final notification, statutory notice
under Section 9 of LA Act was issued to all the persons
interested. As per the mandate of law, such notice shall contain
particulars of the land needed for acquisition with an intent to
ask the affected parties to submit their respective claims and
interests.
20. In the instant case, three notices were issued to the land
owners including deceased land owner Loonkaran Gandhi on
18.07.1974, 07.09.1974 and 18.10.1977. However, as stated
above, the said notices did not mention Khasra No. 35/8. Since
Khasra No. 35/8 was not mentioned, land owner filed the
application seeking discharge from acquisition proceedings.
18
Pursuant thereto, SLAO separated the claim of land owner from
other claimants emanating out of same notification. It is pertinent
to note that NIT vide letter dated 10.10.1969 informed the
Collector, Nagpur that Khasra Nos. 35/1 and 35/2 are
Government Nazul land and asked for transfer of such land in
favour of NIT for the Scheme. In reply, the Collector, Nagpur on
31.05.1972 informed that such land cannot be transferred since
it is not a government land and belongs to ExMalguzar Pande.
Therefore, the Collector requested NIT to submit a valuation
report of the remaining land. The NIT vide letter dated 02.02.1977
acknowledged and requested the SLAO to determine the interest
of the persons from Khasra Nos. 35/8 to 35/12. Later, NIT
submitted proposals for Khasra No. 35/1 and 35/2, but it is not
on record why the proceedings to determine compensation of
Khasra No. 35/8 of the land owner were not commenced.
21. The correspondence also reflects that in absence of initiation
of proceedings for determination of compensation, land owner
submitted a representation to allot alternate land equal to the
land of Khasra No. 35/8 in the same locality which was denied on
06.03.1987. As per material placed, in cases of other landowners,
19
the award was passed on 22.09.1986 by SLAO with respect to
Khasra Nos. 35/3 and 35/4. Thus, it is apparent that possession
was taken from land owner without payment of compensation
and the prayer for alternate piece of land was rejected. It is also
apparent that even up to filing the writ petition, proceedings to
award compensation of the land of Khasra No. 35/8 were not
commenced. On filing the Writ Petition, even during its’
pendency, action to determine compensation was not started.
Therefore, the High Court by the impugned order directed NIT to
consider the prayer for the grant of an alternate plot, otherwise,
SLAO to pass award on or before 30.04.2010. As directed by the
High Court, prayer for the grant of alternate plot was rejected by
NIT, but the award was not passed within the time given in the
order by the High Court.
22. In the given facts, the appellant filed this Special Leave
Petition, wherein, notice was issued on 22.03.2010. The NIT filed
its counteraffidavit on 18.06.2012 contesting the case. On
03.07.2013, this Court passed an order as under –
“ Shri Shekhar Naphade, learned senior counsel appearing
for the petitioner made a statement that without prejudice
to his rights and with a view to amicably resolve the
controversy, his client is willing to give up his claim
20
provided the competent authority of the Nagpur
Improvement Trust is prepared to pay the current market
price.
Shri Satyajit A. Desai, learned counsel appearing
for the Nagpur Improvement Trust requests for an
adjournment to seek instructions from the concerned
authorities.
Put up after two weeks. ”
23. Later, on 22.07.2013, the NIT further sought time to seek
instructions in view of the statement made by the counsel for the
appellant. Thereafter on 02.08.2013, NIT filed additional affidavit
in which reference to ‘exparte’ award passed on 30.04.2013 was
made for the first time and it was stated that a sum of Rs.
54,717/ has been awarded to the appellant. On 21.10.2013,
during arguments, this Court found that there was an inordinate
delay in passing the award dated 22.09.1986 in the case of other
land owners. Therefore, an explanation was sought for delay of 17
years, 8 months and 13 days. The said order dated 21.10.2013 is
relevant and therefore reproduced as thus –
“ After the arguments were heard for some time, Shri Uday
Dube, learned counsel for the State of Maharashtra made
a request for short adjournment to enable his client to file
an additional affidavit to explain 17 years 8 months and
13 days delay between issue of notification under Section
45 of the Nagpur Improvement Trust, 1936 and passing of
the award. Shri Dube further stated that he shall instruct
the concerned officer to explain as to why appropriate
21
award was not passed within the time specified in order
dated 29.09.2009 passed by the High Court.
The request of Shri Dube is accepted and the case is
adjourned to 1.11.2013..
”
24. In view of the above order, time to file additional affidavits
and to explain the delay was allowed to SLAO and NIT, which
were filed by them on 11.11.2013 and 04.12.2013 respectively. In
the said additional affidavits, the SLAO and NIT, both attributed
delay to each other and also against the appellant. Therefore, the
Court after hearing passed the order on 03.01.2014, which is
reproduced as under –
The case was taken up on 21st October, 2013, the Court
“
had passed the following order:
"After the arguments were heard for some
time, Shri Uday Dube, learned counsel for the
State of Maharashtra made a request for short
adjournment to enable his client to file an
additional affidavit to explain 17 years, 8
months and 13 days delay between issue of
notification under Section 45 of the Nagpur
Improvement Trust, 1936 and passing of the
award. Shri Dube further stated that he shall
instruct the concerned officer to explain as to
why appropriate award was not passed within
the time specified in order dated 29.09.2009
passed by the High Court.
The request of Shri Dube is accepted and the
case is adjourned to 1.11.2013."
Pursuant to the said order, explanation has been filed by
the State which shows that there was disputes between
22
the respondents due to which there was a delay of 17
years, 8 months and 13 days between issue of notification
under Section 45 of the Nagpur Improvement Trust, 1936
and passing of the award.
In the circumstances, respondents are directed to explain
as to why this Court will not grant suitable relief to the
petitioners by directing the respondents as to allot
equivalent alternative plots in the adjoining area or to pay
the compensation on the basis of market value as on the
date of award with solatium and interest, as per law.
Affidavit may be filed within three weeks. Reply, if any,
be filed within two weeks thereof.
Post the matter after six weeks. ”
25. In response to the order, neither the State Government nor
SLAO submitted any explanation. It is only NIT who filed an
additional affidavit on 25.01.2014, interalia, stating that
allotment of alternate plots in the adjoining area is not possible
and denied the payment of compensation as per market value as
existing on 03.07.2013. It was stated that it is only the appellant
who can be blamed for inordinate delay. In the said affidavit, the
causes of delay were crystallized in three slots, viz. between the
issuance of notifications till filing of writ petition; delay during the
pendency of writ petition; and delay between the date of order in
the writ petition and passing the award. On filing the said
explanation and upon hearing the parties on 22.07.2014, this
Court passed the following order –
23
“ Heard Mr. Shekhar Naphade learned senior counsel and
Mr. Gagan Sanghi, learned counsel for the petitioner. Mr.
Marlapalle learned senior counsel for Respondent No. 1
and Mr. Pallav Shishodia, learned senior counsel for
Respondent No. 2 in part.
The learned counsel for the parties shall file
respective charts precisely putting forth why there was
enormous delay in passing the award. We have asked
learned counsel for the parties to undertake this exercise
as we are of considered opinion that the compensation
that is allowable under Section 48A of the Nagpur
Improvement Trust Act, 1936 may be applicable if a case
is made out.
List on 5th August, 2014. ”
26. In furtherance to the said order, it is only the appellant who
filed the chart and explained as to how and in what manner, the
delay is caused. It was further stated that only respondents are
responsible for not passing the award despite time bound
directions given by the High Court. Conversely, the SLAO passed
an exparte award that too without any intimation or notice as
mandated by Section 12(2) of LA Act.
27. After hearing the parties and upon perusal of the averments
made in the additional affidavits filed in furtherance of orders
dated 03.07.2013, 21.10.2013 and 22.07.2014, it is clear that
Respondents have taken more than six and half years to issue
final notification which was published on 16.01.1969. The
24
possession had been taken immediately and the three notices
under Section 9 of LA Act were issued on 18.7.1974, 07.09.1974
and 18.10.1977 respectively. The award was passed in the case of
other land owners on 22.09.1986, leaving the case of land
owner/appellant herein. Thus, it is apparent that the period of
seven years has been taken to issue the notice under Section 9 to
the appellant after the date of taking the possession and the
award was passed in the case of other land owners after more
than 17 years, separating the claim of the appellant. In view of
the said chain of events, the delay cannot be attributed to the
appellant. More so, the writ petition filed by land owner before
High Court on 29.04.1992 was decided on 29.09.2009, i.e., after
about 17 years. During the pendency of the writ petition, the
delay, if any, occurred, cannot be attributed to the appellant, but
it may reflect on conduct of respondents for not passing the
award even during such pendency. It is not out of place to
observe that the High Court has not outrightly disregarded the
claim of the appellant for grant of alternate plot in adjoining area
and directed the NIT to take a decision. In case, the allotment of
plot was not possible, respondents were directed to pass an
award within the time frame. The NIT denied the alternate plot,
25
but even thereafter, the award was not passed within the time
limit fixed by the High Court. The award on record was passed by
SLAO only when this Court had taken cognizance in the matter.
Therefore, even after the order of the High Court, there is a delay
of more than three years in passing of the award. Thus, in our
considered opinion, the delay cannot be said to be attributable to
the appellant.
28. As per discussion made above and in the facts of this case,
what amount of compensation may be directed to the appellant
herein needs to be looked into. In this regard, in the case of
compulsory acquisition of land, the eminent domain of the State
cannot be doubted. Simultaneously, right of the land owner
enshrined under Article 300A and Article 31A of the
Constitution of India which has been recognized as a human/civil
right cannot be overlooked. Therefore, if any individual is to be
divested or deprived of the said right by the State, it ought not be
done without giving compensation in accordance with law for the
land so acquired for public purpose.
29. In the above context, we can profitably refer the judgment of
this Court in the case of
“Tukaram Kana Joshi and Others
26
through PowerofAttorney Holder Vs. Maharashtra
Industrial Development Corporation and Others, (2013) 1
SCC 353” . In the said case, this Court had the occasion to
consider the principles of eminent domain, absolute power and
deprivation of the rights to property of an individual. The relevant
paragraphs of the said judgment are reproduced as thus –
“11. …..There is a distinction, a true and concrete
distinction, between the principle of “eminent domain” and
“police power” of the State. Under certain circumstances,
the police power of the State may be used temporarily, to
take possession of property but the present case clearly
shows that neither of the said powers have been
exercised. A question then arises with respect to the
authority or power under which the State entered upon the
land. It is evident that the act of the State amounts to
encroachment, in exercise of “absolute power” which in
common parlance is also called abuse of power or use of
muscle power. To further clarify this position, it must be
noted that the authorities have treated the landowner as a
“subject” of medieval India, but not as a “citizen” under
our Constitution.
17. Depriving the appellants of their immovable properties
was a clear violation of Article 21 of the Constitution. In a
welfare State, statutory authorities are bound, not only to
pay adequate compensation, but there is also a legal
obligation upon them to rehabilitate such persons. The
nonfulfilment of their obligations would tantamount to
forcing the said uprooted persons to become vagabonds or
to indulge in antinational activities as such sentiments
would be born in them on account of such illtreatment.
Therefore, it is not permissible for any welfare State to
uproot a person and deprive him of his
27
fundamental/constitutional/human rights, under the garb
of industrial development.
18. The appellants have been deprived of their legitimate
dues for about half a century. In such a fact situation, we
fail to understand for which class of citizens the
Constitution provides guarantees and rights in this regard
and what is the exact percentage of the citizens of this
country, to whom constitutional/statutory benefits are
accorded, in accordance with the law.
…..Even under valid acquisition proceedings, there is
19.
a legal obligation on the part of the authorities to complete
such acquisition proceedings at the earliest, and to make
payment of requisite compensation…… ”
30. The said judgment has been referred in the case of
“Bhimandas Ambwani (Dead) through LRs Vs. Delhi Power
Company Limited, (2013) 14 SCC 195” , wherein this Court had
considered the aspect of inordinate delay of about five decades in
not granting the compensation to the land loser from the date of
taking over of possession and directed the respondent to make
the award treating the date of Section 4 notification as on the
date of order passed by this Court. For ready reference, the
relevant paragraph is reproduced as thus –
“ 14. The instant case is squarely covered by the aforesaid
judgment in Tukaram case [(2013) 1 SCC 353] and thus,
entitled for restoration of possession of the land in dispute.
However, considering the fact that the possession of the
land was taken over about half a century ago and stood
completely developed as Ms Ahlawat, learned counsel has
submitted that a fullfledged residential colony of the
28
employees of DESU has been constructed thereon,
therefore, it would be difficult for Respondent 1 to restore
the possession. In such a fact situation, the only option left
out to the respondents is to make the award treating
Section 4 notification as, on this date i.e. 1222013 and
we direct the Land Acquisition Collector to make the
award after hearing the parties within a period of four
months from today. For that purpose, the parties are
directed to appear before the Land Acquisition Collector
c/o the Deputy Commissioner, South M.B. Road, Saket,
New Delhi on 2622013. The appellants is at liberty to file
a reference under Section 18 of the Act and to pursue the
remedies available to him under the Act. Needless to say
that the appellants shall be entitled to all statutory
benefits.
31. Recently, the similar approach was adopted in the case of
“Delhi Airtech Services Pvt. Ltd. and Another Vs. State of
, wherein 3
U.P. and Another, (2022) SCC Online SC 1408”
Judge Bench of this Court in a reference while dealing with the
divergent views of two Judges relating to taking over of possession
without following the mandate of Section 17 of the LA Act, visa
vis violation of constitutional guarantee to a citizen under Article
300A of the Constitution of India, the Court answered the said
reference as thus –
25. On weighing all aspects of the matter, we deem it
appropriate that it will serve the ends of justice to direct
the respondents to determine the market value insofar as
the appellant's land is concerned by reckoning the relevant
date as 09.06.2008 (i.e. the date on which the award was
ultimately passed), by applying the yardstick under Act,
29
1894. It is made clear that only the market value be
determined as on that date but for awarding the statutory
benefits, it shall be calculated from the date of the original
notification since admittedly the appellant has been
dispossessed on 04.02.2003 pursuant to the notification
dated 17.04.2002. Further, from the date on which the
fresh award is passed pursuant to this judgment, the
appellant would get the cause of action for seeking
reference if dissatisfied with the quantum of compensation
awarded. It is made clear that the determination of
compensation, in this case, shall not give rise to any right
in favour of any other land loser whose land was acquired
under the same notification, to seek for redetermination of
compensation where the same has already attained
finality.
27. In the result, we pass the following order:
(i) The provision contained in Section 11A of Act, 1894
shall be applicable to cases in which the acquiring
authority has not complied with the requirement of sub
section (3A) to Section 17 of Act, 1894 by tendering and
paying eighty per centum of the estimated compensation
before taking possession since possession in such cases
cannot be considered to be taken in accordance with law
and the vesting is not absolute.
(ii) If the requirement is complied and possession is taken
after tendering and paying eighty per centum, though
there is need to pass an award and pay the balance
compensation within a reasonable time, the rigour of
Section 11A of Act, 1894 will not apply so as to render the
entire proceedings for acquisition to lapse in the context of
absolute vesting. The right of land loser in such case is to
enforce passing of the award and recover the
compensation.
(iii) In the instant case though Section 11A of Act, 1894
has become applicable, in the changed circumstance we
deem it proper to mould the relief instead of holding the
acquisition to have lapsed.
30
Hence for the reasons stated above, we direct as follows:
(a) The respondents shall construe 09.06.2008 as the
relevant date and determine the market value prevailing
as on that date applying the yardstick under Act, 1894 in
respect of the acquired land.
(b) To calculate the statutory benefits on such amount
including interest, the same shall be determined by taking
into consideration the date of the Section 4 notification
dated 17.04.2002 since the appellant was dispossessed
on 04.02.2003 pursuant to the same.
(c) The date on which the fresh award is passed pursuant
to this judgment and communicated shall be the date of
cause of action for seeking enhancement of compensation
if the appellant is dissatisfied with the quantum of
compensation offered.
(d) The compensation determined in this case shall not
give the cause of action to any other land loser whose land
is acquired under the same notification to seek re
determination of compensation.
(e) The appellant shall be entitled to the cost incurred in
these proceedings.
”
32. In view of the judgments referred above, this Court while
striking a balance between eminent domain of the State and
human/civil rights of an individual, has put an obligation on the
State and its authorities to pass an award within a reasonable
time. It is observed that, on compulsory acquisition of land, if the
award is not passed within a reasonable time duly compensating
such an individual, it would cause grave hardship and it would
adversely affect the livelihood of the land loser. In the said
31
judgments, because of inordinate delay in passing the awards,
the Court had changed the date of preliminary notification
ordinarily applicable in determining the market value of land for
assessing amount of compensation, to the date of the judgment of
the Court, and/or the date of award passed belatedly. This Court
has recognized the right of the citizen after taking possession of
the land without payment of compensation. As observed, the
delay in determining compensation uproots the land losers,
however, to meet the ends of justice and to rationalize the equity,
switching the date of market value in determining compensation
by the orders of the Court is found necessary.
33. In the case of
“K. Krishna Reddy and Others Vs. Special
Deputy Collector, Land Acquisition Unit II, LMD Karimnagar,
, this Court has
Andhra Pradesh, (1988) 4 SCC 163”
conceptualized the effect of nondetermination and payment of
compensation immediately to a land loser. The Court observed
that if there is inordinate delay in determination as well as
payment of compensation, it diminishes the purchase power as
well as value of Rupee due to rising inflation. Therefore, the utility
32
to compensate such land loser with equal value cannot be ruled
out. In the said case, the Court has observed as thus –
…..After all money is what money buys. What the
“ 12.
claimants could have bought with the compensation in
1977 cannot do in 1988. Perhaps, not even one half of it. It
is a common experience that the purchasing power of
rupee is dwindling. With rising inflation, the delayed
payment may lose all charms and utility of the
compensation. In some cases, the delay may be
detrimental to the interests of claimants. The Indian
agriculturists generally have no avocation. They totally
depend upon land. If uprooted, they will find themselves
nowhere. They are left high and dry…….. ”
34. If we take clue from the above referred judgments and the
observations made, the principles as enunciated squarely applies
in the case on hand. For the sake of clarity and at the cost of
repetition, looking to the records before us, it is clear that the
preliminary notification was published on 12.07.1962 followed by
final notification on 16.01.1969. The possession of the subject
land was taken in 1970 and the road was constructed which is in
public use since then. In the case of other land owners, award
was passed on 22.09.1986, discriminating the land
owner/appellant herein. Even after directions of the High Court
in order dated 29.09.2009 to pass an award by 30.04.2010, it
was passed ‘exparte’ after three years on 30.04.2013 during
33
pendency of this appeal without adhering to the mandate of
Section 12(2) of the LA Act. Consequently, appellant could not get
compensation of the land since last five decades. In view of the
said conduct, we are of the considered view that the value of the
land which may be on the date of preliminary notification cannot
be equated on the date of passing of ‘exparte’ award. As per
Section 48A of LA Act, which is legislatively applicable as per the
Schedule of NIT Act, it is clear that if the award is not passed
within a period of two years from the date of final notification,
compensation for the damages suffered due to delay is required to
be determined as prescribed therein. Therefore, in the peculiar
facts of this case and to meet the ends of justice, we deem it
appropriate to mould the relief and direct that the SLAO shall
pass a fresh award taking market value as on the date when the
‘exparte’ award was passed, i.e., 30.04.2013. Needless to observe
that, other statutory benefits shall be reckoned and payable from
the date of preliminary notification as per the provisions of the LA
Act. We are also of the firm view that the appellant shall be
entitled for compensation for damages due to delay as specified
under Section 48A of the LA Act within a period of four months.
34
35. Accordingly, in view of the foregoing discussion, the appeal
is allowed in part with the following directions –
1. As the land has been acquired under the NIT Act,
therefore, in view of judgment of Nagpur Improvement
Trust (supra) & Bankatlal (supra), the benefit of Section
11A of LA Act (lapse of land acquisition proceedings),
shall not be available to the appellant and the findings in
this regard recorded by the High Court are hereby
affirmed.
2. The rejection of request of appellant for grant of alternate
piece of land by NIT, does not warrant any interference in
the facts of this case.
3. The ‘exparte’ award dated 30.04.2013 shall not be given
effect to and the SLAO is hereby directed to determine the
compensation afresh. For the said purpose, SLAO shall
take the market value of the subject land as on the date
of passing of ‘exparte’ award, i.e., 30.04.2013 and
determine the compensation affording an opportunity to
the appellant and NIT.
35
4. The appellant shall also be entitled to all other statutory
benefits as per the provisions of the LA Act which shall be
calculated from the date of notification as prescribed by
law.
5. The appellant shall also be entitled to compensation for
damages suffered in view of delay as per Section 48A of
LA Act as modified by Schedule of NIT Act.
6. The said exercise be completed by the SLAO within a
period of four months from the date of appearance, for
which the parties are directed to appear on 25.09.2023.
7. Pursuant to this judgment and on passing the award as
directed, if the appellant is dissatisfied, the cause of
action to seek reference for enhancement shall be from
the date of communication of the fresh award.
8. The other land owners whose land were acquired under
the same notification and who have received
compensation will not be entitled to seek redetermination
of compensation in view of this judgment.
36
36. All the pending applications, if any, shall stand dismissed.
No order as to costs.
...……………………..J.
(SURYA KANT)
…………….…………J.
(J.K. MAHESHWARI)
NEW DELHI;
SEPTEMBER 6, 2023.
37