First Appeal No. 112 of 1989

7th September, 1999

Petitioner Counsel: Mr. R. G. KETKAR
Respondent Counsel: Mr. K. K. TATED

Cases Cited:
The State of Maharashtra Vs. Sou. Kamlabai Vishwanath Bagad, 1973(3) Bom. C.R. 597 [Para 14]
Urban Improvement Trust Vs. Gokul Narain, (1996) 4 SCC 178 [Para 17]

JUDGMENT

N. J. PANDYA, J.:- In respect of the Town Planning Scheme under the Maharashtra Regional and Town Planning Act, 1966 (for short "M.R.T.P. Act") in the part of the city of Pune, on or about 10th July 1966, a plot bearing No. 104 belonging to the Appellant came to be reserved for primary school. The plot admeasures 4160 sq. meters. The Pune Municipal Corporation was approached from time to time seeking permission to develop the property. Eventually when the request was denied a notice under Section 49 of the M. R. T. P. Act came to be issued by the Appellant on or about 6th February, 1971. The Government accepted the said notice on 28th July, 1971 i.e. within six months as stipulated under Section 49 sub-section 4 of the M.R.T.P. Act, and acquisitioned the area of 2435.42 sq. meters only.

2. The Special Land Acquisition Officer, referred to as the S.L.A.O., proceeded to determine the compensation amount, and as per the award, his offer to the owner was for Rs. 50/- per sq. meters.

3. Not satisfied with this, as he has asked for the compensation at the rate of Rs. 97/- per sq. meters, the Appellant sought Reference under Section 18 of the Land Acquisition Act, 1894. This came to be heard and decided by the Ld. Extra Joint District Judge, Pune, on 13th October, 1988, who was pleased to grant only the addition of Rs. 10/- per sq. meters. For the balance amount of Rs. 37/- per sq. meters, the present Appeal is filed.

4. The Scheme of the Act (i.e. M.R.T.P.) makes it clear that for the purpose of bringing about extinction of right of a private owner, the whole process of the Land Acquisition Act starting with Section 6 has to be gone into, and it automatically also allows the reference under Section 18 and so on. For market value purpose, however there is a Sub-section (3) of Section 126 of the M.R.T.P. Act. Sub-section (3) provides with regard to the date with reference to which the market value of the land under acquisition has to be fixed.

5. Once the Land Acquisition Act has been incorporated by reference as per sub-section (3) to the extent to which its provisions are to be excluded, the State Legislative Assembly has chosen to do so as set out at Item Nos. (i), (ii) and (iii) under sub-section (3) of Section 126 of the M.R.T.P. Act with two proviso.

6. Based on this statutory material, the Ld. AGP wanted us to consider that the trial Court could not have granted the relief of 30% compensation as well as 12% compensation as per the amended Sections 23 and 23(1A) of the Land Acquisition Act, 1894 (for short the said "Act".)

7. We do not agree with the submission of the Ld. AGP. The reason is that Sub-section (3) clearly provides that the Collector shall proceed to make order for the acquisition of the land under the said Act viz. land Acquisition Act, 1894, and the provisions of that Act shall apply to the acquisition of the said land, with the modification that the market value of the land shall be as per Item Nos. (i), (ii) and (iii) appearing below the aforesaid part of sub-section (3).

8. In our opinion, therefore, the date on which the question arises for grant of compensation whatever be the decision of the Land Acquisition Officer, with or without amendment, will automatically apply to a particular case of the acquisition. The submission of the Ld. AGP to the effect that the amended section 23 and the other provisions relied on before the Reference Court by the Appellant not being there when reference came to be made under M.R.T.P. Act to the said Land Acquisition Act in Sub-section (3), they cannot get benefit of the amended provisions.

9. In our opinion, once the submission is to the effect that whatever be the position of the Land Acquisition Act on the date when it came to be referred to in M.R.T.P. Act, it stands frozen as on that date and subsequent amendment will not apply and, therefore, neither the S.L.A.O. nor Reference Court can consider the same for the purpose of granting compensation.

10. In our opinion, the State Government should be the last to make such submission because, after all, in exercise of its eminent domain when it extinguishes right of a private citizen, the market value as on the relevant date that he has to be paid the State Government must fairly on its own opt for the statutory interpretation in the manner suggested above. When a citizen is sought to be deprived, in our opinion, unless there is a specific provision indicating that this is a legislative intent or there is a clear cut legislative provision, on the basis of interpretation, he cannot be denied benefits of amendments.

11. In any interpretation in favour of the citizen, who is losing his property, justness and fairness has to be there. If an acquisition is under 1899 Act, simpliciter, a citizen will get benefit of the amended provisions and merely because the acquisition is under M.R.T.P. Act, his right shall stand so frozen as was the position in unamended Act, because, it came to be referred to in a local enactment on the date when it came to be passed in legislative assembly. In our opinion, it would be a clear cut discrimination in the eyes of Constitution.

12. No doubt, the State is exercising its power for a larger welfare of the people or the population of a particular area when it exercises its power under M.R.T.P. Act. At the same time, when the compensation is to be given and for the purpose when there is a reference to Land Acquisition Act which for all practical purposes is thus statute for determining the price of a property which is being acquired, indirectly, it cannot be permitted to create a discrimination between the citizens and the will be the situation if a neighbour of a citizen like present Appellant was to face acquisition under the said Act, and a citizen like the Appellant was to lose his land or property, under M.R.T.P. Act. The compensation will stand frozen under the provisions of the M.R.T.P. Act when the Land Acquisition Act came to be referred to in the M.R.T.P. Act. Naturally, the said hypothetical citizen or neighbour of the Appellant who is facing acquisition under the said Act will not be so handicapped. We are quite sure that this could never be the legislative intent.

13. Such intent cannot be gathered from the Act either. Even if one makes best possible attempt with the help of the Ld. AGP and reading Sub-section (3) of the M.R.T.P. Act, 1966, in our opinion, a reference is to the Act and therefore the provision of the Act as it stands on the date of the acquisition will certainly apply. We further hold that an important aspect is the date of the acquisition and not the date of incorporation by reference in the enactment. Whatever be the statutory provisions, with or without the amendment of the said Act on the date of the acquisition, in our opinion, will govern and regulate the exercise of determination of the compensation.

14. A Division Bench of this Court had dealt with a similar question in the Case of The State of Maharashtra Vs. Sou. Kamlabai Vishwanath Bagad & Ors., reported in 1997(3) Bom. C.R. page 597, where it has been held that while determining the provisions under the amendment to sections 23 and 23(1-A), its benefit has to be given to the claimant of an acquisition under M.R.T.P. Act. It must be stated that, in fairness, the Ld. AGP, has brought to our notice the fact that this judgment was before the Hon'ble Supreme Court by way of Special Leave Petition No. 10125 of 1997 and the operation of the order is stayed.

15. However, while dealing with the question of interpretation, in our opinion, the said fact of pendency of Special Leave Petition will not come in the way. Moreover, in the instant case, the State has chosen not to file either cross objection or any cross appeal and the order of the trial Court before us is brought under challenge only with regard to the balance of the compensation amount as discussed above.

16. We are mindful of the provisions of Order XLI Rule 22 of the Code of Civil Procedure where the Respondent - the State could have raised this point but we are of the view that when it directly affects the total amount of compensation, the State either could have appealed or at least could have filed cross objections which not having been done, the said provision of the Code of Civil Procedure will not help the Respondent - State.

17. The Ld. AGP has relied on a decision in the case of Urban Improvement Trust Vs. Gokul Narain (Dead) by Lrs. & Anr., reported in (1996) 4 S.C.C. Page 178, where a special statutory provision of Section 60-A, as inserted by Rajasthan Act 29 of 1987, was before the Supreme Court and, therefore, it is obvious that the benefit of Section 23(2) or Section 23(1-A) and Section 28, as amended by Act 68 of 1984, cannot be given effect to. In absence of the statutory provision, in our opinion, the said Supreme Court decision will not help the Respondent - State.

18. Having said all these in favour of the Claimant, so far as the merits of enhancement of the compensation is concerned, we do not find any substance in it at all.

19. Before the trial Court, the Appellant has examined himself at Exhibit 13. In his examination-in-chief, he does not say a word about the reduction in the value or injurious effect on account of partial acquisition out of the total area, and on top of it in the cross examination, he clearly admits, "I had made a request to the Municipal Corporation to relinquish reservation at least in respect of a part of the property".

20. An attempt was made to make out a case of loss having been suffered for want of development permission. Once an area is declared to be reserved, under the M.R.T.P. Act, no development permission can be granted. Only useful purpose that can be served by filing an application for development is to prepare a ground for issuing purchase notice under Section 49 of the M.R.T.P. Act. If on lapse of six months period or before that, if accepted, the said purchase notice will become effective. Within one year of that, the process for acquisition has to be started by issuing a notice under Section 126(4). If this does not happen, the reservation will lapse.

21. All these formalities having been duly complied with, in our opinion, the so called attempt of a development, which has failed, will be of no avail to the Appellant.

22. The other evidence is in the form of the Valuer's Report and his opinion, for which purpose, the Valuer has been examined. His deposition is at Exhibit - 21 and his report has also been produced in the cross of his deposition. We were taken through the report and the deposition. The sale instances are produced before the Court. The opinion with regard to the sale instances therefore cannot be looked at.

23. The rest of the aspects become meaningless because sub-section (3) of Section 126 of the M.R.T.P. Act provides with regard to the date with reference to which the market value is fixed is not with reference to Section 126(4) of the M.R.T.P. Act but with reference to publication of a regional development plan. The sale instances relied on by the Valuer, therefore, even if produced, would be of no avail because they are produced at much later date.

24. In this background, we do not see any reason to increase the compensation granted by Reference Court which has added Rs. 10/- to the compensation awarded by the S.L.A.O. The S.L.A.O. granted Rs. 50/- per sq. meter to which Rs. 10/- has been added by the Reference Court.

25. In the event of the aforesaid evidentiary material, which is mainly of an oral character, wherein, of course, the report which is extensively referred to by the Valuer in his deposition, when the trial Court has fixed the value in the manner it did, we do not find any infirmity in it. Hence, the following order is passed.

26. Appeal is dismissed. The order of Reference Court is confirmed.

27. No order as to costs.

Appeal Dismissed.