Writ Petition No. 2260 of 2009. Case: Baliram Vs State of Maharashtra and Ors. High Court of Bombay (India)
| Case Number | Writ Petition No. 2260 of 2009 |
| Counsel | For Appellant: P.V. Vaidya, Adv. and For Respondents: Mrs. B.H. Dangre, Addl. Government Pleader |
| Judges | S. A. Bobde, J. and B. P. Dharmadhikari , J. and Smt. V. A. Naik , J. |
| Issue | Land Acquisition Act (1 of 1894) - Section 18; Urban Land (Ceiling and Regulation) Act (33 of 1976) - Sections 6, 7, 10(1) |
| Citation | AIR 2011 Bom 1 |
| Judgement Date | August 12, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
S.A. Bobde, J.
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The Question referred to this Full Bench for consideration is:
"Whether the State can, in respect of the land though covered at the relevant time under the provisions of the ULC Act, but acquired subsequently under the provisions of the Land Acquisition Act, call upon the expropriated land-holder to furnish an undertaking as contained in the communication dated 31-3-2006 that he will not seek enhanced compensation under the Land Acquisition Act?"
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The issue arose in a Writ Petition filed by the expropriated land-holder challenging the condition sought to be imposed by the Government that compensation would be released and remitted to him under the award only if he gave an undertaking to the effect that he would not seek its enhancement under Section 18 of the Land Acquisition Act.
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The facts which give rise to the question are as follows:-
The land-holder holds land which was liable to be declared surplus under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the Ceiling Act"). He filed statements and returns under Sections 6 and 7 of the Ceiling Act. A notification under Section 10(1) giving the particulars of the vacant land held by the land-holder in excess of the ceiling limit was published by the Government on 31-12-1981. However, it is undisputed, that the requisite notification under Section 10(3) declaring that the excess land referred to in the earlier notification is deemed to have been acquired by the State Government was not published and, therefore, the land has not vested absolutely in the State Government free from all encumbrances. In the meanwhile, due to mounting public pressure from farmers, who were deprived of their lands for the MIHAN Project, the Government decided to abandon proceedings under the Ceiling Act and instead chose to initiate proceedings for acquisition of the land under the provisions of the Land Acquisition Act. Accordingly, the Government issued a notification under Section 4 of the Land Acquisition Act on 18-11-2002. This was followed by a notification under Section 6 of that Act on 21-1-2003. An award was passed on 20-1-2005. Under the award, the Government acquired both kinds of lands: i.e. retainable by the land-holder as well as the surplus land under the provisions of the Land Ceiling Act. Under the award, compensation became payable to the land-holder in respect of retainable land as per market value. As regards the surplus land, the compensation was made payable taking market value as the basis; however, this compensation was termed in the award as ex gratia payment. The Government released the compensation in the sum of Rs. 18,95,373/- for retainable land on 24-9-2008. However, the Government refused to release compensation in the sum of Rs. 14,09,613/- for surplus land acquired under the same award, without an undertaking by the land-holder that he would not seek enhancement of compensation under the provisions of the Land Acquisition Act. The land-holder having surrendered possession of the retainable land and being in possession of the surplus land, has approached this Court by way of Writ Petition challenging the aforesaid condition sought to be imposed by the Government that he should give an undertaking. It appears that earlier, Writ Petition No. 5555 of 2006 filed by a similarly circumstanced land-holder challenging the imposition of the same condition was dismissed by a Division Bench of this Court on 28-8-2007, thus rejecting the challenge to the demand for the undertaking. Another Division Bench disagreeing with the former view, has formulated the aforesaid question for answer by a Larger Bench. Thus, the aforesaid question has been referred by the Hon'ble the Chief Justice to this Bench.
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The main contention of Shri P. V. Vaidya, the learned Counsel for the expropriated land-holder, is that the Government having decided to acquire the surplus land (hereinafter referred to as "the land") under the provisions of the Land Acquisition Act instead of the Land Ceiling Act is not entitled to demand an undertaking that he would not seek enhancement in the compensation. According to the learned Counsel for the land-holder, such a demand which imposes a condition for release of compensation deprives the land-holder of the right vested in him by Section 18 of the Land Acquisition Act to apply for a Reference to the Civil Court for enhancement of the compensation.
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According to Mrs. B. H. Dangre, the learned Additional Government Pleader for respondent Nos. 1 to 4, the Government is justified in seeking the undertaking in question since the land-holder had lost his entitlement to hold the land by virtue of the enactment of the Urban Land Ceiling Act, 1976. Having thus lost his entitlement to hold land, he was entitled to receive the compensation at the low rates prescribed by that Act alone. However, the Government decided to resort to the provisions of the Land Acquisition Act and thus decided to give the land-holder higher rate of compensation calculated according to the higher rates prescribed under the Land Acquisition Act and given ex gratia and, therefore, such a land-holder who would have got a much lesser compensation under the provisions of the Land Ceiling Act is not entitled to make any grievance regarding the inadequacy of compensation or seek its enhancement under the provisions of the Land Ceiling Act. According to Mrs. B. H. Dangre, the learned Additional Government Pleader for respondent Nos. 1 to 4, the Government is thus perfectly justified in seeking such an undertaking before releasing the compensation to the expropriated land owner under the award. It is also a contention of Mrs. B. H. Dangre, the learned Additional Government Pleader for respondent Nos. 1 to 4, that Section 42 of the Urban Land Ceiling Act has an overriding effect over anything inconsistent therewith in any other law for the time being in force and therefore, since the land was covered by the provisions of the Land Ceiling Act, the compensation granted to the land-holder under the provisions of the Land Acquisition Act is inconsistent with the provisions of the Land Ceiling Act and, therefore, the land-holder at least cannot be said to have a right to have it enhanced.
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In support of the first contention, Mrs. B. H. Dangre, learned Additional Government Pleader for respondent Nos. 1 to 4, relied on a decision of the Supreme Court in Ratan Kumar Tandon and others v. State of U.P. reported in (1997) 2 SCC 161: (AIR 1996 SC 2710) in which the Supreme Court held with regard to the acquisition of land in that case that it was not necessary for the State to proceed with the determination of compensation under Section 23(1) of the Land Acquisition Act to the extent of excess land found under the Ceiling Act. It was also not necessary for withdrawing notification under Section 48(1) of the Land Acquisition Act for the reason that compensation for the land within the ceiling limit is liable to be determined under the Land Acquisition Act and that it is not necessary for the Government to acquire surplus land and pay compensation therefor under the provisions of the Land Acquisition Act. We are, however, unable to apply the ratio of the said decision to the case in hand since the observations made in Ratan Kumar's case (AIR 1996 SC 2710) (supra) were in the context of the surplus land having vested in the State Government under the provisions of the Ceiling Act; whereas, we find that in the present case, the surplus lands have not vested in the State Government under the provisions of the Ceiling Act since no notification has admittedly been issued under Section 10(3) of that Act and it is not Government's case that the provisions of the Land Acquisition Act had wrongly been applied to the land in question.
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Mrs. B. H. Dangre, learned Additional Government Pleader for respondent Nos. 1 to 4, however, submitted that the Land Ceiling Act applied to the petitioner's land because the petitioner had filed Returns under that Act and a notification under Section 10(1) had also been issued. This was, therefore, a fit case for applying the ratio in Ratan Kumar's case (AIR 1996 SC 2710) (supra). According to the learned Counsel, a surplus land holder...
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