Bombay High Court
Manakchand Sarupchand Lunavat And Ors. vs State Of Maharashtra And Ors. on 9 August, 1988
Equivalent citations: AIR1989BOM339, 1989(2)BOMCR445, AIR 1989 BOMBAY 339, (1990) 1 CURCC 297.2
JUDGMENT Dharmadhikari, J.
1. Since all these writ petitions involve common questions of proceedings, they were heard together and ate being disposed of but this common judgment.
2. A development plan for Nasik City was sanctioned by the State Government and brought into force in the year 1959. In this plan, the lands involved in these writ petitions were reserved for road widening. Thereafter in the year 1975, the said plan was sought to be revised and a revised draft plan was published which cane to be sanctioned on the year 1980 and came into force on 29th of November 1980. In this revised plan also the properties in question were reserved for road widening. On 19th of March 1980 by a request letter to the Collector in that behalf procedure for acquisition of lands was started by the then Administrator of the Municipal Council, Nasik. In its turn the said proposal came to be forwarded BY THE Collector to the Special land Acquisition Officer. Thereafter a notification dated 31st August 1981 came to be published in the Government Gazette on 1st October 1981 under S. 126(2) of the Maharashtra Regional and Town Planning Act and S. 6 of the Land Acquisition Act . Notices under S. 9(1) and S. 9(2) were duly published in accordance with law by Talathi of the area on 29th October 1981. Notices on the interested persons were also served under Ss. 9(3) and 9(4) of the Act on 3rd November 1981. Thereafter the award came to be passed by the land Acquisition Act were issued to the interested persons. From the record it appears that on 10th of November 1983 in the mean while a corrigendum was also issued by the Commissioner, Nasik Division for inclusion of the property for acquisition which was inadvertently left out. After declaration of the award and issuance of the notices under S. 12(2) of the Land Acquisition Act , present writ petitions came to be filed in the month of November1986, challenging the proceedings for acquisition on the properties as well as the ultimate awards passed.
3. S/Shri Lamlaria, Manidhane and Ganu, learned counsel appearing for the petitioners, have contended before us that the proceedings instituted by the Special Land Acquisition Officer are void ab initio. The proceedings are based in the development plan of 1959 but the notifications came to be issued on the revised plan of 1980. Before starting proceedings for acquisition of lands , the Collector had not obtained the sanction from the State Acquisition Act . the notification dated 1-10-1980 is also ultra cures and without jurisdiction as well as a nullity as the Additional Commissioner had no jurisdiction to issue the notification under S.126 of the MRTP Act . therefore , the proceedings started and the notification issued by the Additional Commissioner are void ab initio. Further the said notification is contrary to the Government circular dated 28 th of September 1980, which provides that the proposals of the development plan should be implemented only after ensuring necessary rehabilitation of the affected persons. It was then contended that the award passed is so illegal, since it is passed in breach of the provisions of S. 11A of the Land Acquisition Act . It is also contended that though apparently if appears that the award was signed on 17th August 1986 and declared on 23rd of September 1986,in fact it came to be communicated vide communication dated 12th of October 1986, which was served on the petitioners sometime thereafter. Which is beyond the period prescribed by S. 11A of the Land Acquisition Act . therefore, in substance it is contended by the learned counsel for the petitioners that the Commissioner or the Additional Commissioners had no authority to issue the impugned notification and the award passed is also contrary to S. 11A of the Land Acquisition proceedings are also violated of Art. 300A of the Constitution.
4. On the other hand it is contented by S/Shri Rane, Dalvi and Gangal AGP , counsel for the respondents, that tafter the development plan was sanctioned in they year 1959, a revised draft development plan was prepared on 2nd of September 1975 which was duly published in the Maharashtra Government Gazette on 4th September 1975, as per the provisions of S. 26(1) of the MRTP Act , inviting suggestions and objections. About 425 objections or suggestions were received by the Municipal Council , which were duly considered by the said Council. As major modifications were suggested, the Municipal Council resolved to republish the draft development plan (revised),as per the provisions and suggestions were invited. About 91 objections and suggestions were received. After considering the said objections and suggestions the Municipal Council submitted a draft development plan (revised) to the Government for sanction on 29th of June 1978. Government sanctioned the plan on 26th of September 1980 as a date on which the development plan was to come into force. The sanctioned development plan contained various proposals for road widening of Reviewer Karanja. Fresh traffic survey was three-fold increase in the traffic. To say the least additional Land Acquisition Act was required for the purpose of road widening and the same was provided in the development plan of 1980 itself. The police department was also continuously asking for taking immediate steps for road widening. Citizens of the locality were also demanding the same. In anticipation of the road widening Victoria Bridge now renamed as Ahilyabat Holkar Bridge, has been strengthened. The municipal council has also deposited about Rs. 30 lacs with the Land Acquisition Act Acquisition Officer being the compensation money. In these circumstances according to the respondents this is not a fit case for interference in the writ jurisdiction of this court under Art, 226 of the constitution as these petitions have been filed after inordinate and unexplained delay. According to respondents on this short ground alone these writ petitions deserve to be dismissed.
5. So far as the merits of the controversy are concerned. It is contended by the respondents that in exercise of the powers conferred by S. 13(3) of the Maharashtra Land Acquisition Act Revenue Code. Government of Maharashtra had issued a notification directing that every Additional Commissioner shall exercise all the powers and discharges all the duties and functions conferred upon the commissioners under the Acts -specified in the schedule appended to the notification. The schedule included the Land Acquisition Act Acquisition Act .S.126 of the MRTP Act provides for acquisition of Land Acquisition Act required for public purposes as specified in the plans. Laud can be acquired by agreement or by taking recourse to the provisions of the Land Acquisition Act Acquisitions Act . Sub-sec. (2) of S. 126 of the MRTP Act , then lays down that a declaration in that behalf is to be made in the manner provided under S. 6 of the Land Acquisition Act Acquisition Act . Therefore, if the Additional Commissioner or the Commissioner were already authorized to exercise the powers under the Land Acquisition Act Acquisition Act , then no separate notification under the MRTP Act was necessary. Even otherwise the contention raised is too technical to deserve any consideration up these writ petitions. The respondents have also placed reliance upon. S. 150 of the MRTP Act which deals with the validation of the Acts and proceedings and lays down that any omission, defect or irregularity not affecting the merits of the case will not vitiate the proceedings. It is the case of the respondents that right from the first plan of 1959 till the revised plan of 1980, properties in question were shown a reserved for the road widening . The revised plan was also sanctions by the State Government after proper application of mind and, therefore the procedure followed thereafter under the Land Acquisition Act Acquisition Act is perfectly legal and valid.
6. So far as the challenge based on S. 11A of the Land Acquisition Act Acquisition Act is concerned,it is contented by the Counsel for the respondents that in the present case, the award came to be made on 17th August 1986 or in any case on 23rd September 1986, though communication of the award under, S. 12(2) of the Act is later on. What is relevant under S,11 A is a making of an award within a period of 2 years from the commencement of the Land Acquisition Act Acquisition(Amendment ) Act , 1984., which came into force on 24th September 1984 and, therefore the award made is within limitation. Thus it is the case of the Respondents that all the provisions of law i.e., MRTP Act and the Land Acquisition Act Acquisition Act were duly complied with before making of the award. In this view of the matter the challenge under Art- 300A is also not available.
7. In writ petition No. 5052 of 1986 the notification is of the year 1976 and was issued by the Commissioner himself to whom powers were delegated vide Government Resolution dt.30-8-1971. It relates to acquisition of Land Acquisition Act for motor stand.
8. In writ petition No.5233 of 1986, which relates CTS .o. 1080. Shri Ganu, learned counsel appearing for the petitioners did not challenge the acquisition proceedings as such but has contented that before passing of an award, petitioners who are co-owners of the property were not given any individual notices. , under S. 9(3) of the Land Acquisition Act . Admittedly the award came to be made on 17th August 1986 or 23rd September 1986. Thereafter a notice of possession was issued which was received by the petitioners on 28-10-1986. Therefore the present writ petition is filed within a reasonable time. It is also contended by him that the notice under S. 9(3) is mandatory and failure to give such notice must vitiate the award as well as proceedings. On the other hand ir is contended by the counsel for the respondents that out of 10 co-owners only 2 have come to the court to challenge the award. It is not the case of the petitioners that individual notices under S. 9(3) were not issued either mala fide or in colorable exercise of powers. In these circumstances individual notices to two co-owners were not mandatory and hence non-service of notices will not vitiate the award. In support of this contention the counsel for the respondents have placed strong reliance upon the decisions in (FB) Collector of Cuttack v. Mayadhar Sahu, P.K. Shaik v. State of West Bengal, Lakhbir Chand v. Land Acquisition Officer , Delhi and State of M.P. v. Smt. Sugandhi. It is also contended by the learned counsel that this position is further clear from the amendment to S. 25 of the Land Acquisition Act by the Amending Act 68 of 1984. An additional Contention was raised by Shri manudhane learned counsel appearing for the petitioners in Writ Petition No. 5135 of 1986 that in the propertied owned by the petitioners there is a private Ganapathi temple. Under S. 22 of the MRTP Act which deals with the contents of the development plan, the authorities are obliged to make a provisions for religious buildings. If this is so then the property which has a temple cannot be or should not be acquired and on that count also acquisition of that part of the property will be illegal. In reply to this , it is contended by the learned counsel appearing for the respondents that S. 22 deals with the development plan and the proposals in that behalf. Neither the MRTP Act nor the Land Acquisition Act Acquisition Act , lays down that the property in which there is a temple can never be acquired. In this case the so-called temple is a private temple which is a part and parcel of a large property which is sought to be acquired for the road widening and, therefore, it cannot be said that the acquisition of the said property is in any way illegal.
9. From the rival contentions raised before us it is clear that the main challenge in these writ petitions is to the notification issued in the 1st if October 1980, Admittedly these writ petitions are filed sometime in November 1986 i.e, practically after 6 years. Lands are being acquired for the purpose of road widening which is an urgent public purpose. As to why the challenge to the said notification was not raised at the earliest opportunity, no explanation is forthcoming. The petitioners have not explained as to why these petitions came to be filed after 6 years. Thus practically there is no explanation , much less reasonable explanation, for this delay. It has been brought to our notice by Shri Dalvi, learned counsel appearing for the Municipal Corporation, Nasik that in all 38 properties are being acquired for the purpose of road widening . out of them 8 properties are involved in these writ petitions. In all about 100 owners are involved and out of them only 10 are before Court. Even amongst the m only one owner of the property has come forward to challenge the acquisition and other petitioners are tenants. In these circumstances this court should not exercise its extraordinary jurisdiction under the Art. 226 of the constitution of India to Upset the Land Acquisition Act acquisition proceedings meant for the road widening which is a public purpose. We find much substance in this contention is Shri Dalvi.
10. It is pertinent to note that even after the issuance of the notice under S. 9 of the Act , petitioners had not chosen to challenge the notifications issued under S. 6 within a reasonable time, but they chose to wait till the fugal award was passed. Therefore in our view they have disentitled themselves from seeking any relief's under the extraordinary jurisdiction of this Court under Art. 226 of the Constitution . In this context Shri Dalvi has rightly placed reliance upon the decisions of the Supreme court in Ablation v. Lt. Governors of Delhi. , Indrapuri Griha Nirman Sahakari Samiti LTd, v. State of Rajasthan, , Babu Singh v. Union of India and . Hari Singh v. State of U.P. As observed by the Supreme court in Babu Singh's case to allow the petitioners to challenge a declaration issued under S. 6 of the Land Acquisition Act Acquisition Act in the year 1980 at this late stage would be putting a premium on dilatory tactics. In these cases the delay must disentitle the petitioners from challenging the said declaration at this late stage. Since on the basis of the declaration made., the Municipal Corporation. Nasik has already , deposited a sum of Rs. 30 lacs with the Land Acquisition Act Acquisition Officer and had carried out the constriction work for strengthening the grudge in anticipation of the road widening. The acquisition proceeding are for the purpose of road widening which is obviously an urgent public purpose. Out of 100 interested persons only 10 have chosen to approach this Court. Others have obviously accepted the award passed by the Land Acquisition Act Acquisition Officer. In these circumstances .in our view these writ petitions are liable to be rejected on the short ground that they have been filed after an undue and unreasonable delay.
11. Even on merits we do not feel that the petitioners are rntitled to any reliefs in the writ jurisdiction of this court. the development plan was prepared and sancationed after following the procedure prescribed by the MRTP Act . Persons interested had an opportunity to file objections when the draft plan was publisned. After considering the objections filed and the suggestions made, the final plan came to be sancations in the year 1980. In the first development plan of 1959 as well as in the revised plan of 1980. These properties were earmarked and reversed for road widening. Therefore, obviously the petitioners had an opportunity to put forward their say so far as the siutability of the Land Acquisition Act or its requirement for the purpose of road widening is concerned. That stood concluded after the sancation of the final development plan. Thereafter the authorities are expected to follow the procedure contemplated to follow the procedure contemplated by the Land Acquisition Act Acquisition Act . If the provisions of the Land Acquisition Act Acquisitioin Act are compared and read with the relevant provisions of the MRTP Act , it is quite obvious that there is no repugnancy or inconsistency between the two Acts. On the contrary provisions of s. 126 clearly show that there was no intention to override the provisions of the Land Acquisition Act Acquisition Act . On the other hand a specific reference is made to Land Acquisition Act Acquisition Act in s. 126 of the MRTP Act . S. 6 of the Land Acquisition Act Acquisition Act . deals with the declaration that the Land Acquisition Act is required for a public purpose . In the sancationed development plan the lands in questioin are already reserved for road widening , which is obviously a public purpose. Section 6 of the Land Acquisition Act Acquisition Act as applicable to the State of Maharashtra authorises. The Commissioner to make a declaration in that behalf . Vide notification dated 30th August 1971 issued in exercise of the power conferred by S.151 (11) of the MRTP aAct . Government of Maharashtra has already delegated to the Commissioner of the Division, power exercisable by the State Government under sub-sectiions (1) , (2) and (4) of S. 126 and S. 129 of the MRTP Act Vide notification dated 30th August 974 issued in exercise of the powers conferred by S. 13(3) of the Mah. L.R. Code. Government of Maharashtra directed that every Additional Commissioner shall exercise all the powers and discharge all the duties and functions conferred on the Commissioner under the Land Acquisition Act . Therefore, under S. 6 of the Land Acquisition Act , powers could have been exercised by the Additional Commissioners also. This aspect of the matter fell for consideration of this Court in Gulabrao Bablaji Ujjainkar v.State of Maharashtra, . Under sub-sec (2)of S.126 of the MRTP Act , a declaration in the Official Gazette is contemplated in the manner provided in S. 6 of the Land Acquisition Act . The declaration duly made under the said Section. Even otherwise, in view of the provisions of S.150 of the MRTP Act , acts done or the proceedings taken under the said Act cannot be questioned on the ground that there was any omission, defect or irregularity, not affecting the merits of the case. The provisions of the MRTP Act and the Land Acquisition Act Acquisition Act will have to be read together and harmoniously. Therefore it cannot be said that the declaration made by the Additional Commissioner was wholly without jurisdiction or was ab initio void so as to describe it as a nullity. In writ petition No.5052 of 1986 a declaration was made by the Commissioner himself, obviously in exercise of powers conferred upon him by Section 6 of the Land Acquisition Act Acquisition Act , as well as by notification dated 30th August 1971 issued under the MRTP Act . Therefore it is not possible for us to accept the contentions of the petitioners.
12. Further it is clear from record that the proceedings for acquisition was initiated by the Administrator. Nasik Municipal Council by a request letter to the Collector, Nasik dt. 19th March 1980. On 28th March 1980 the Collector forwarded the proposal to the Special Land Acquisition Act Officer, Nasik II and, thereafter notices under S. 9 came to be published and issued. Therefore, in our view there is substantial compliance even with the provisions of S. 7 of the Land Acquisition Act .
13. So far as the challenge based on S. 11A of the Land Acquisition Act is concerned, reliance is placed by the learned counsel for the petitioners upon the decision of the Supreme Court in , Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officier. On the basis of the said decision it is contended by the learned counsel that the award will be deemed to have been made of the date on which it is communicated to the claimants. Therefore, in the present case it will have to be held that the award came to be made by the Land Acquisition Officier on 26th October 1986, the date on which it was communicated to the petitioners. It was also contended by Shri Manudhane, the learned counsel for the petitioners that the ultimate award under S. 11 of the Act is nothing but an offer. This offer is to be made to the claimants. Unless the claimants know about the offer, in law it cannot be said that any offer is made. Therefore, unless the offer is communicated to the claimants, it cannot be said that any offer is made to the claimants. In support of this contention he has placed strong reliance upon the decisions of the Supreme Court in , Raja Harish Chandra Raja Singh v. Deputy Land Acquisition Officier, , Mrs. Khorshed Shapoor Chenai v. Asstt. Collector of Estate Duty of A. P. and , Santosh Kumar v. Central Warehousing Corporation and has contended that the award by the Collector under Section 11 of the Land Acquisition Act is merely a tender or offer and nothing more. Hence, the words to make an award as used in Section 11A of the Land Acquisition Act , will have to be construed in that contest. In the present case offer is communicated to the petitioners by notices isued under Section 12(2) of the Act which were received by them on 20th October 1986. Therefore, the award passed is obviously beyond the time prescribed by S. 11A of the Act and hence the entire proceeding for acquisition Land must lapse. It is not possible for us to accept this construction S. 11 deals with an enquiry and award to be made by the Collector. Then S. 12 lays down as to when the award of the Collector will become final. Under S.12(1) the award is to filed in the Collector`s office and thereafter it is treated as final and conclusive evidence as between the Collector and the persons interested. Then comes sub-sec. (2) of S. 12 which reads as under:
``12(2) The Collector shall give immediate notice of his award (or the amendment thereof made under S. 12(A) to such of the persons interested as are not present personally or by their representatives when the award (or amendment) is made``.
Therefore S. 11 and S. 12 if read together and harmoniously, it is quite clear that a ;making of an award is a stage earlier than its filing in the Collector`s office and its communication under S. 12 of the Act . This position is further clear from S. 18 of the Land Acquisition Act , under which a reference could be made to the Court . The provisoto S. 18(2) lays down that if the person making the application was present or represented before the Collector at the time when he made his award (or the amendment) then within six weeks from the date of the Collector`s award (or the amendment) he can make an application for reference. In other case he can make an application for reference within six weeks of the receipt of the notice from Collector under S. 12, Sub-sec. (2), or within six months from the date of the Collector`s award (or the amendment) whichever period shall first expire. The expression used under S. 18(2) of the Land Acquisition Act i.e. date of the Collector`s award, came for consideration of the Supreme Court in Raja Harish Chandra Raja Singh`s case . Since it involved a question of limitation and a right of aggrieved person to make a reference within a period prescribed, the Supreme Court construed the expression `date of award` to mean date of knowledge or communication of the award to the person interested. The Supreme Court`s decision in Raja Harish Chandra Raja Singh`s came, therefore will have to be read and understood in this context. In our view the expression `making of an award` as used in S. 11A, cannot be equated with the expression, `date of the award` within the contemplation of S. 13(2) of the Land Acquisition Act . In this context a reference could usefully be made to the decision of the Supreme Court in , Khadim Hussian v. State of U.P. wherein the distinction between a declaration under S. 6 and its notification under S. 4 came to be explained. Therefore what is contemplated by S. 11A is `making of an award` without prescribing period and knot its communication. If S. 11A is so construed, then it is clear that ;the award made by the Land Acquisition Officer was within a period of two years from the commencement of the Land Acquisition (Amendment) Act , 1984, since the declaration in this case was published before the commencement of the Amendment Act . The amendment came into force on 24th September 1984 and the award in the present case was made on 17th August 1986 and declared on 23rd September 1986, which was within the period prescribed. If such an interpretation is not put on the expression, then it will result ;in anomalies. If the award is communicated to the interested persons on different dates it will mean that the award is also made on different dates i.e. dates on which it is communicated to them. But the date of making of an award cannot change with the date of communication. Therefore, a distinction will have to be made between the `making of an award`, its filing with the Collector and its communication under S. 12(2) of the Act and the date of award within the contemplation of S. 18(2) of the Act . Hence it is not possible for as to accept the contentions raised by the petitioners in that behalf.
14. In Writ Petition No.5135 of 1986, which relates to CTS Nos. 1254 to 1258, Shri Manudhane has raised an additional contention. According to him on the first floor of the property there exists a Ganapati temple for which Collector`s grant of Rs. 171/- per year is being regularly paid by the Government. A Sanad in that behalf was also granted by the District Deputy Collector on 5-4-1919. This position is also reflected in the records of the Nasik Mum. Council as well as in the Revenue records. In or about 1911 there was a proposal for acquisition of the said property for the purpose of road widening, but subsequently it was dropped in view of the existence of the temple and, therefore, according to the learned counsel acquisition of the said portion of Land Acquisition Act for road widening is illegal, in view of the provisions of S. 22 of the MRTP Act . It is not possible for us to accept this contention. S. 22 deals with the contents of the development plan. It lays down that the development plan the use of Land Acquisition Act in the area of a planning Authority shall be regulated and also indicate the manner in which the development of Land therein shall be carried out. In particular, it shall provide so far as may be necessary for all or any of the matters specified in sub-clauses (a) to (m). Sub-clause (b) deals with the proposals for designation of Land for public purposes, which include religious buildings. We do not understand how this Section is relevant for deciding the controversy raised before us. An inference cannot be drawn even by implication from those provisions that a religious building can never be acquired for any public purpose whatsoever. It is not disputed nor it could be disputed that the lands are being acquired for a public purpose i.e. road widening. If it becomes necessary to acquire property for road widening, which has a private temple in it, there is no far to do so in any ;of the enactments i.e. MRTP Act or the Land Acquisition Act . It is not the case of the petitioners that the Land Acquisition Act is not needed for public purposes. As a matter of fact it is so reserved in the development plans of 1959 and 1980. In these circumstances we do not find any substance in the said contention also.
15. So far as writ petition No. 5233 of 1986 is concerned, the only contention argued before us by Shri Ganu is that the petitioner Nos. 1and2 as well as respondent 6 were not served with individual notices under S. 9 sub-sec. (3) of the Land Acquisition Act . It is nowhere challenged in the petition that the procedure prescribed by Ss. 9(1) and 9(2) was not followed. Therefore it will have to be presumed that the procedure prescribed by S. 9(1) and S. 19(2) was duly followed by the authorities concerned. Further as already observed, properties in question are owned by 10 persons who are co-owners of the properties. Out of them only two have chosen to challenge the award passed by the Land Acquisition Officer and others have accepted it. It is not known as to whether any notices were issued or served upon the co-owners since they have not approached this court nor have chosen to challenge the acquisition or award. Therefore it will have to be held that the non-issuance or non-service of individual notices upon 2 persons under 9(2) will not vitiate the proceedings. A contention was also raised in ground No. 10 of the petition that the fact that the petitioners names for the first time came to be entered in the final notice of possession in place of third party. Who had no concern whatsoever with the property, speaks volume about the mala fide intention on the part of the respondents Nos. 1 to 5. It is possible for us to accept this contention, or draw an inference of mala fide from this fact alone, nor an inference could be drawn that intentionally no novices were issued to the two petitioners. Therefore in our view to such a case the law laid down by this Court in , Laxmanrao Kristrao v. Provincial Govt. of Bombay will not apply.
16. Under S. 9(1) of the Land Acquisition Act the Collector is obliged to cause public notice to be given at convenient places on or near the Land Acquisition Act to be taken, stating that the Government intends to take possession of the Land Acquisition Act, and that claims to compensation for all interests in such Land Acquisition Act may be made to him. Sub-Section (2) 0f S. 9 lays down as to what particulars should be stated in such notice and as ro when the claims to compensation and objections (if any) to the measurements are to be lodged. Then comes sub-sec(3) of S. 9 which deals with the individual notices. Therefore, by public notice all persons interested including petitioners were already informed about the acquisition and their right to ledge the claim of compensations. In the circumstances , merely because no individual notices were served upon two petitioners. Who are co-owners, under s. 9(3) of the Land Acquisition Act Acquisition Act . acquisition or the award cannot get vitiated. In this context the learned counsel appearing for the respondents have rightly placed reliance upon the decisions referred to above i.e., and . As rightly observed by the Madhya Pradesh High Court in State of M.P. v. Smt. Sugandhi, , omission or failure to serve notice due to bona fide mistake or due to inadvertence, would not make the proceedings bad, or the award illegal, or the vesting without jurisdiction. After making a detailed reference to the decisions in the filed this is what the Madhya Pradesh High Court has observed in para 21 of the said judgment:
" 21. A person who has not appeared in the acquisition proceedings because he was not served with notice. Is yet entitled to raise dispute relating to apportionment, measurement and ask the Collector to make a reference under S. 18 to court. The determination of compensation by the Land Acquisition Act Acquisition Collector, under the scheme of the Act , is an offer not only to those who might have appeared before him and advanced their claims, but also to those who for some reason did not participate in the determination of the offer but had interest in the Land Acquisition Act acquired. The compensation that the Land Acquisition Act Acquisition collector determines for the whole body of persons interested in the Land Acquisition Act, whether or not they appear before him. The provision of s. 9(3) of the Act could not then be mandatory."In the present case the award passed is a jiont award qua all the properties. Compensation determined is for the whole body of persons interested. Petitioners are merely two co-owners. Other Co-owners have accepted the award, the object of sub-sec. (3) of s. 9 is to offer the person occupying the Land Acquisition Act or compensation, so that the Collector may decide the compensation payable to them. The award made by the collector under S. 11A of the Act is in the nature of an ofter or tender. The claimant may accept or may not accept the offer. If he chooses to reject it., then he has right to make a reference to the court for adjudication of his claim for compensation. Such a reference could be made under S. 18 of the Act . Prior to the amendments to S. 25 by the amending Act , of 1984, by sub-sec (2) of S. 25 of the Act ., the claimant was not allowed to make any claim if he has refused to make such a claim in pursuance to anu notice given under S. 9 of the Land Acquisition Act Acquisition Act . Now by the Amending Act .1984S. 25 as a whole came to be substituted, which lays down that the amount of compensation awarded by the Court shall not be leass then the amount awarded by the collector under S. 11. therefore there is no embargo or prohibition for a claimant to seek a reference under s. 18 of the Land Acquisition Act Acquisition , if he is not satirized with the compensation.awarded by the Land Acquisition Officer. Hence it is not possible for us to accept the contention of Shri Ganu in this behalf since no prejudices is caused to the petitioners by non-service of the notices.
17. In the present case as already observed out of 10 owners only two have chosen to approach this Court. The property is owned by the 10 co-owners. It is not known as to whether other co-owners had received any notice under S. 9(3) of the Act or not. Therefore only because petitioners before us have not been seved with individual notices under S. 9(3), in our view neither the acquisition nor the award can get vitiated. However, in all fairness, Shri Gangal, learned Additional Government Pleader appearing for the respondents 1 to 5 has made a statement before us that if petitioners choose to exercise their right to seek a reference under S. 18 of the Land Acquisition Act , within six weeks from to day, then without raising any contention about limitation the respondents shall forward the same to the competent Court. In view of this statement petitioners in writ petition No. 5233 of 1986 are at liberty to seek a reference under S. 18 of the Land Acquisition Act , within six weeks from today.
18. The question of rehabilitation of the petitioners does not arise as according to the respondents they have alternate accommodations and no claim for rehabilitation was even made. It appears that petitioners have raised this contention for the first time in these writ petitions as an excuse. Hence we do not find any substance in this contention also.
19. So far as the contention based on Art. 300A of the Constitution is concerned, it is peritinent to note that no person shall be deprived of property save by authority of law. The properties are being acquired in the present cases with authority of law. i. e. after following the procedure prescribed by the MRTP Act and the Land Acquisition Act . A contention was also raised by Shri Kankaria learned counsel for the petitioners, that even if petitions are filed after an undue and unreasonable delay, since it involves challenge under Art. 300A confers a constitutional Right, enforcement of the said right is hopelessly delayed or the claimants chosen to sleep over their rights for a considerable long time, and therefore, it will not be just and fair to exercise extraordinary powers under Art. 226 of the Constitution, in favour of such persons. This position appears to be clear from the decisions of the Supreme Court in , Ramana Dayaram Shetty v. The International Airport Authority and State of M.P. v. Nandlal Jaiswal . It cannot be forgotten that in the present case it will be the general public which will ultimately suffer. Lands are being acquired for road widening for the convenience of the general public . Lands were reserved for the said purpose right from the year 1959. Notification in that behalf was issued in the year 1980. In these circumstances in our view as already held this is not a fit case wherein this court should exercise its extra ordinary jurisdiction under Art. 226 of the Constitution at this late stage.
20. In the view which we have taken, therefore, there is no substance in these writ petitions. Hence Rule discharged in all these writ petitions with no order as to costs.
21. At this stage learned counsel appearing for the petitioners prayed for leave to appeal to the Supreme Court. Petitioners have also prayed for continuance of the interim orders. Since out of 38 properties which are under acquisition and 100 owners involved, only 10 persons have chosen to challenge the same and that too qua 8 properties, we do not feel that this is a fit case wherein such a leave should be granted or interim orders should be continued. It is pertinent to note that even if petitioners succeed on technical grounds, result will be fresh notifications will have to be issued and in that case they will be entitled to get enhanced compensation. It is no doubt true that the properties are required for road widening which is an urgent public purpose. Hence leave refused and the interim orders vacated.
22. Petitions dismissed.