Bombay High Court
Kuldip K. Kamat And Another vs Special Land Acquisition Officer No. ... on 22 February, 1996
Equivalent citations: AIR1996BOM224, 1996(5)BOMCR170, AIR 1996 BOMBAY 224, (1996) 2 ALLMR 158 (BOM) (1996) 5 BOM CR 170, (1996) 5 BOM CR 170
Author: A. P. Shah
Bench: A.P. Shah
ORDER A. P. Shah, J.
1. By this petition under Art. 226, the petitioners are challenging acquisition of their land under the Maharashtra Industrial Development Act, 1961 ("Act", for short).
2. The petitioners are owners of an area of 1 acrc and 3 gunthas out of Survey No.20/5B situate at Gokul-Shirgaon, taluka Karveer, district Kolhapur. On Nov. 17, 1977, the Special Land Acquisition Officer No. III, Kolhapur, issued notice under Section 32(2) v of the Act calling upon the petitioners to show cause why their land-should not be acquired for the purpose of establishment of the Gokul-Shirgaon industrial area. By the said notice, the petitioners were asked to remain present at the office of the Talathi, Gram Panchayat, Shirgaon on January 6, 1978 for personal hearing. Admittedly, the petitioners did not file objections to the proposed acquisition; they merely applied for an adjournment and thereafter did not participate in the proceedings at all. Finally, the Special Land Acquisition Officer issued notice dated Oct. 23,1979 under Section 32(5) calling upon the petitioners to hand over the possession of their land within 30 days from the receipt of the said notice. There is no dispute that in pursuance of the said notice, the authorities have taken possession of the petitioners'land and it is being developed as an industrial area.
3. It is common ground that the possession of the petitioners' land was taken sometime in Nov. 1979. However, no steps were taken for declaring the award in accordance with Section 33 of the Act. It appears that in 1982, the petitioners made a representation to the Maharashtra Industrial Development Corporation (MIDC) for allotment of alternative land to them. Pursuant to the said representation, by letter dated Oct. 21, 1986, the Regional Officer of MIDC called upon the petitioners for a hearing on Oct. 28, '1986. But there was no progress as far as the declaration of the award is concerned and the admitted position is that till this date the award is not declared.
4. The basic contention of the petitioner is that there is gross delay in making the award and, therefore, the original acquisition proceedings are liable to be quashed and set aside. Reliance is placed on Rule 27 of the Maharashtra Industrial Development Rules, 1962 ("Rules", for short) in support of the contention that the acquisition proceedings should be revoked in view of long and inordinate delay in making the award. It is also contended that the principle underlying the provisions of Section 11A of the Land Acquisition Act should be invoked for holding that the acquisition has become void on account of the delay in passing the award.
5. Before we deal with the contention raised by the petitioners, it is necessary to refer to the provisions of Chapter VI of the Act, which deal with the acquisition and disposal of land. Section 32 provides the procedure for compulsory acquisition. Sub-
section (2) of Section 32 provides for inviting objections from the owner of the land, while sub-section (J) contemplates personal hearing to be given to the affected owner. Subsection (4) says that when notice of acquisition undersub-section (1) is published in the official gazette, the land on and from the date of publication shall vest with the Government free from any encumbrance. Sub-section (5) provides for taking over possession of the land after the publication of the notice in the official gazette. There is no dispute that this procedure has been followed before acquiring the land of the petitioners.
6. Turning then to the provisions relating to the fixation of compensation, it is seen that Section 33 of the Act requires the State Government to pay for acquisition, compensation of the amount, which is to be determined in accordance with the "provisions contained in the said section. In fixing the compensation, the Collector is guided by the provisions contained in Sections 23 and 24 of the Land Acquisition Act, 1894, with "certain modifications, which are stated in Section 33. Before determining the amount of compensation, the Collector is required to give an opportunity to the persons to be compensated to state his case as to the amount of compensation. It is important to bear in mind that Section 33 does not fix the period for making of the award. Coming then to Rule 27 on which heavy reliance is placed, it is no doubt true that the said rule provides time of one year for declaration of the award, with power to the State Government to extend the said period but not exceeding 12 months. It will be useful to reproduce Rule 27, which reads as follows:
"Time within which cases under Section 33(3) to be disposed of :-
The Collector shall dispose of cases referred to him under sub-section (3) of Section 33 within one year from the date on which they are referred to him (or not later than such further period not exceeding twelve months, as the State Government may, in any case or class of cases, allow)."
7. Mr. Abhyankar, learned counsel for the petitioners, urged that Rule 27 has provided time limit of one year for making of the award and conferred on the State Government power to extend the time from time to time but not more than 12 months in aggregate. Mr. Abhyankar further urged that the outer limit fixed by Rule 27 is two years from the date on which the case is referred to the Collector and since no award has been declared within that period, the acquisition proceedings have become void and non est. Mr. Abhyankar tried to draw support to his argument from Section 11A of the Land Acquisition Act, which, according to Mr. Abhyankar, is similar to Rule 27, though he fairly conceded that effect of non-compliance is not specifically provided under Rule 27. Mr. Abhyankar also submitted that the use of the word "shall" in the Rule 27 denotes the mandatory nature of the rule and the only consequence of non-compliance of the said rule will be rendering the acquisition proceedings a nullity.
8. The argument of Mr. Abhyankar, though at first sight, appears to be attractive, on a closer scrutiny, is devoid of merit. It is no doubt true that Rule 27 prescribes time limit for pa'ssing of the award. It is equally true that the said rule provides aggregate period of two years for making the award. However, Rule 27 cannot be said to be mandatory in the sense that non-compliance with it leads to nullification of the acquisition, which has already become final. The rule, while using the expression "shall", does not provide expressly or by necessary implication that non-compliance therewith results in nullification of the acquisition or in the divesting of title of the Government or that on such non-compliance, the land acquired has to be restored to the original owners. Surely, all these aspects could not have been left to be inferred. These are vital matters and not matters of mere procedure. In our considered view, the provisions of Rule 27, which is placed under the caption of "Miscellaneous" under Chapter VI of the rules, are in the nature of guidelines for the authorities under the Act. It may be that one of the aspects behind framing the said rule is to safeguard the interest of the owners of the land acquired, but that does not mean that non-compliance with the rule shall result into nullification of the acquisition proceedings, which are already completed. Therefore, in our view, Rule 27 cannot be equated with Section 11A of the Land Acquisition Act, which specifically provides for lapsing of proceedings for failure of the authorities to declare the award within two years. Moreover, the scheme of the Chapter VI of the Act is totally different than the Land Acquisition Act. Under Chapter VI of the Act, land vests in State Government upon publication of notification under Section 32(1), whereas under the Land Acquisition Act, vesting takes place after the declaration of the award and upon the taking possession of the land. We have, therefore, no hesitation to reject the argument of Mr. Abhyankar that acquisition proceedings have become null and void on account of failure to declare the award within stipulated time.
9. Even though we are not accepting the argument of Mr. Abhyankar that the non-compliance with Rule 27 has vitiated the award, we feel that there is absolutely no justification for the delay that occurred in declaring the award. The authorities have taken possession of the petitioners' land as far back as in 1979. Since then no steps whatever are taken to make the award till this date. Mr. Sawant, for MIDC and Miss Sarnaik, learned AGP, fairly conceded that they are not in a position to justify such long and inordinate delay in making the award. In our opinion, this is a fit case for directing the authorities to pay interest on the amount of compensation by way of additional compensation, which will serve the ends of justice. In somewhat similar situation, in Ram Chand y. Union of India, the Suprerne Court awarded interest at the rate of 12% per annum on account of the undue delay caused in making the award. We do not see any reason as to why similar directions for payment of interest should not be ordered in the present case and accordingly, we pass the following order.
The respondent Nos. 1 and 3 are directed to declare the award within four months from today. They are further directed to pay interest at the rate of 17% per annum by way of additional compensation from the date of taking over the possession till the date of payment of compensation. Rule is made, absolute in above terms with costs.
Order accordingly.