RIKHABCHAND MANIKCHAND LALWANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE land bearing survey no. 383 admeasuring 8-h and 72-r situate within the municipal area of manmad municipal council originally belonged to the petitioner. The respondent no. 4 manmad municipal council prepared a development plan for manmad city under the provisions of the maharashtra regional and town planning act, 1966. For implementation of the said plan, respondent no. 4 required to acquire various lands including the land belonging to the petitioner. The notification under section 4 of the land acquisition act was issued on 19th april, 1981. This notification came to be corrected by corrigendum dated 26th november, 1981. Thereafter in exercise of power under section 17 of the land acquisition act, possession of the land was taken on 26th September, 1983. It appears that the petitioner was paid Rs. 36,000/- as advance compensation for 1-h and 80-r. And a further compensation of Rs. 74,000/- was paid for 3-h and 77-r. Of which possession was taken on 8th march, 1983. However, the award has not been passed by the slao till this date. Therefore, according to the petitioner, acquisition proceedings have lapsed in view of the provisions of section 11 -a of the land acquisition act. The petitioner contends that possession was taken by the respondents on 26th September, 1983 by applying urgency clause and consequently the respondents were under legal obligation to make the award on or before 26th September, 1985. However, though the award was made in respect of remaining area in survey no. 383, no award was passed for the area of 3-h and 77-r. And thus the proceedings have lapsed and the land is liable to be returned to the owner and if the municipal council is not in a position to return the land appropriate compensation should be paid to the petitioner at the market rate on the date on which fresh proceedings for acquisition of the said land are initiated.

(2.) THE only issue is when the land is acquired by applying urgency clause under section 17 and it is vested in the government the provisions of section 11-a requiring passing of the award within two years are applicable. The issue is no more res integra in (satendra prasad jain and others v. State of u. p. and others), a. i. r. 1993 s. c. 2517, a three judge bench of the supreme court has held as follows: the provisions of section 11-a are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the section 6 declaration. In the ordinary case, therefore, when government fails to make an award within two years of the declaration under section 6, the land has still not vested in the government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of section 11-a, lapse. When section 17 (1) is applied by reason of urgency, government take possession of the land prior to making of the award under section 11 and, thereupon the owner is divested of the title to the land which is vested in the government. Section 17 (1) states so in unmistakable terms. Clearly section 11-a can have no application to cases of acquisition under section 17 because the lands have already vested in the government and there is no provision in the said act by which land statutorily vested in the government can revert to the owner. Section 11-a cannot be so construed as to leave the government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation. In the instant case, even that 80 percent of the estimated compensation was not paid to the owners of the land although section 17 (3-a) required that it should have been paid before possession of the said land was; taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the government. Therefore, it is at any rate, not open to the authority for whom land sought to be acquired which failed to make the necessary monies available and which has been in occupation of the said land ever since its possession was taken, to urge that the possession was taken illegally and that, therefore, the said land has not vested in the government and the government is under no obligation to make an award. Similar view was taken by another three judge bench of the supreme court in (senjeevanagar medical and health employees co-operative housing society v. Mohd. Abdul wahab and others), a. i. r. 1996 s. c. w. 2764.

(3.) IN the instant case it is not in dispute that advance compensation was paid to the owner and possession of the land was taken on 26th September, 1983. Therefore, by operation of section 16 the land stood vested in the state free from all encumbrances. In the light of the decision of satendra. Prasad jain's case once possession is taken and the land is vested in the government, title to the land so vested in the state is subject only to determination of compensation and to pay the same to the owner. Divesting the title to the land statutorily vested in the government and reverting the same to the owner is not contemplated under the act. Only section 48 (1) gives power to withdraw from acquisition that too before possession was taken. This question is not arisen in this case.