1999(3) ALL MR 193
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S.H. KAPADIA AND B.H. MARLAPALLE, JJ.
Khan Najam S/O Hafiz Khan Vs. State Of Maharashtra & Ors.
Writ Petition No.2135 of 1999
7th May, 1999
Petitioner Counsel: Shri H.S. BAJAJ
Respondent Counsel: Shri A.H. KAPADIA,Shri R.R. MANTRI ,Shri K.B. CHOUDHARI
Land Acquisition Act (1894), S.6 - Acquisition of half portion of shop - Premises consisting of two storeys - Tenant doing business for last several years - Construction of supporting wall absolutely necessary for dividing premises in two parts - Compensation offered to landlord - Landlord directed to construct dividing wall as per plan of Land Acquisition officer. (Para 1)
JUDGMENT :- Today when the matter reached, learned Advocate for the Landlord contended that under Land Acquisition Act there is no provision for Landlord being directed to put up the wall even in cases where half the shop of the tenant is going in acquisition. Mr. Mantri, learned Advocate for owner further contends that there is nothing to show that half the shop is required for acquisition. Learned A.G.P. states that as per plan submitted by Land Acquisition Officer half the shop goes for acquisition. This is also supported by Corporation. The acquiring body states that acquisition needs to be completed at the earliest. At this stage learned Advocate for the Landlord states that he is not even made party respondent. In this case the Landlord has appeared before us on three occasions. In this matter we do not wish to delay acquisition. However, the Petitioner has been doing the business in the shop for last several years. If half the shop is being acquired, the shutter put up by the Petitioner will have to be pulled down. Under the award the Landlord is offered compensation for construction of the wall. If the shop is required to be divided into two parts then supporting wall will have to be constructed. Otherwise there is danger to structure which is two storeyed. Hence, we direct the Land Acquisition Officer to take possession of half the shop after wall is put up dividing the shop. The question is who has to do so. Although in the Award, the owner is offered compensation the Landlord is not inclined to do so. On the other hand, the tenant apprehends that if possession of half the shop is given to Land Acquisition Officer, he will have to close his business particularly when the Landlord has yet to obtain permission from the Corporation. In the circumstances, we direct the Landlord to construct the dividing wall as per Plan of the Land Acquisition Officer after obtaining permission from the Corporation. On obtaining permission, Land Acquisition Officer will release part of compensation which is earmarked for construction of the wall. If the Landlord does not apply to Corporation within 2 weeks, the Petitioner is given liberty to apply to Corporation for permission for construction of the wall, without N.O.C. from Landlord. The Land Acquisition Officer is directed to take possession forthwith of half the shop as per the plan no sooner the wall is put up as directed above. This order is passed as property is required to be acquired immediately. The Petitioner is not challenging the acquisition. He only seeks protection under the above circumstances. Hence, subject to above directions, Writ Petition is disposed of.
2. On 4.5.1999 Liberty to the Petitioner was granted to add the Landlord as a party respondent to the Writ Petition. This order is passed in continuation of the earlier order passed by the Court on 6.5.1999. The matter has come before this Court on three occasions. The learned Advocate for Landlord was also heard. Subject to above W.P. is disposed of.