9911796707
TMI Blog2003 (1) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... wing terms :- 1. Area assessed on flat Rs.16,000/- per acre 2. Nahri/Chani Rs.14,000/- 3. Chali Mustan Rs.10,800/- 4. Banani Rs.9,000/- 5. Coir Mumkin/Bajar Rs.4,500/- It is not in dispute that the appellants in relation to the amount of compensation awarded by the respondents herein for acquiring their properties entered into agreements in the prescribed form under the provisions of the 1952 Act, which was made operative for the residual matters flowing from the proceedings of acquisition of lands upon repeal of the Defence of India Act, 1971. Questioning the non-inclusion of interest in the said award they filed a writ petition before the High Court which was marked as C.W.P. No.4983 of 1976 which were allowed. A special leave petition filed by the respondents herein before this Court marked as Special Leave Petition (Civil) No.74 of 1998 questioning the said order of the High Court was dismissed on 4th September, 1984. Another writ petition was filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the High Court, the appellants herein, inter alia, raised a question of maintainability of the writ petition on the ground delay and latches on the part of the respondents, as allegedly the writ petition had been filed after a period of five years. By reason of a judgment and order dated 1.4.1999, a learned Single Judge of the High Court upon setting aside the order of the Special Land Acquisition Collector dated 30.5.1988 allowed the writ petition where-against the appellants preferred an intra-court appeal which also came to be dismissed by reason of the impugned judgment dated 27th January, 2000. Mr. O.P. Sharma, learned Senior Counsel appearing on behalf of the appellants in the Civil Appeals arising out of Special Leave Petition (Civil) Nos. 11687 and 17079 of 2000 and SLP (Civil) ..(CC 4700 of 2001) would contend that no doubt this Court in Union of India vs. Gurbachan Singh and others [(1995) 1 SCC 292] and Union of India and Another vs. Babu Singh and others [(1996) 1 SCC 477] following its decision in Hari Krishan Khosla's case (supra) has held that in relation to an acquisition under the provisions of the 1952 Act, Section 28A of the Land Acquisition Act would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment to requisition immovable property. Section 4 empowers the competent authority to take possession of the requisitioned property. Section 5 which provides for rights over requisitioned property reads thus :- Rights over requisitioned property.- (1) All property requisitioned under section 3, shall be used for such purposes as may be mentioned in the notice of requisition. (2) Where any premises are requisitioned under section 3, the competent authority may order the landlord to execute such repairs as may be necessary and are usually made by landlords in that locality and as may be specified in the notice, within such reasonable time as may be mentioned therein, and if the landlord fails to execute any repairs in pursuance of such order, the competent authority may cause the repairs specified in the order to be executed at the expense of the landlord and the cost thereof may, without prejudice to any other mode of recovery, be deducted from the compensation payable to the landlord. A requisitioned property can be released from requisition in terms of Section 6. Section 7 confers power upon the Central Government to acquire the requisitioned property. The princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the same condition as it was at the time of requisitioning and been sold on the date of acquisition. The acquisition of the lands of the appellants as also the award and the writ petitions, as noticed hereinbefore, have been made and disposed of prior to coming into force of Section 28A of the Land Acquisition Act. The 1952 Act is a self-contained Code. The 1952 Act not only lays down a criteria for determination of compensation but also provides for the mode and manner thereof. The procedures for determining the award of compensation are not the same. The provisions of the Land Acquisition Act are, ex-facie not applicable for determination of compensation under the 1952 Act. The provisions of the Land Acquisition Act and the 1952 Act are, thus, not in para-materia. Section 23 of the Land Acquisition Act 1894, on the other hand, lays down the factors which are required to be taken into consideration in determining the amount of compensation. The mode and manner in which the compensation payable for acquisition of land under the 1952 Act and Land Acquisition Act, 1894 are, thus, distinct and different. We fail to see as to how the provisions of Section 28A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by them. In the event it be held that the provisions of Section 28A of the Land Acquisition Act is maintainable in a proceeding under the 1952 Act, not only there would be an enhancement in the quantum of compensation but also corresponding enhancement in solatium and interest, which, in view of the orders passed in the writ petitions, would be impermissible. In Union of India and Others v. Dhanwati Devi and others reported in (1996) 6 SCC 44 a three judge bench of this Court held: 14. The question, therefore, emerges whether it is necessary for the State Legislature to expressly specify that interest or solatium shall not be payable for the lands or property acquired under Section 7(1) of the Act. Sub silentio is eloquent. It would further be seen that Section 8 of the Central Act equally does not provide for payment of solatium and interest. The Act was passed in the year 1968 while the Central Act was passed in 1952. It would, therefore, be reasonable to conclude that the State Legislature was cognizant of the express provisions for payment of interest and solatium available in the Acquisition Act. The Act omitted similar provisions for payment of interest and solatium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the awards passed by the arbitrator in 1987. The answer to the said question, in our considered opinion, must be rendered in the negative. It has rightly been accepted at the bar that in the event a reference is made to an Arbitrator by the owner of the lands, Section 28A of the Land Acquisition Act would not be applicable. The parties herein entered into agreements in terms of clause (a) of sub-section (1) of Section 8 and, thus, the same falls within the realm of a contract, and parties thereto would ordinarily be bound thereby unless the same is vitiated by fraud, misrepresentation etc. Once the matter is concluded by a contract, a novation of contract would also fall within the realm of contract only. If the contention of Mr. Narasimha is accepted, a contract can be reopened only with the agreement of both the parties. The parties must be ad-idem therefor. The person whose lands were acquired, thus, having entered into an agreement cannot be said to have any legal right which can be enforced in a court of law so as to enable him to obtain an order from the Court directing the Union of India to reopen the agreement; only because by reason of a subsequent award an enhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government, respondent herein, in the writ petition was that as the provision of Section 28A of the Land Acquisition Act being not applicable, the Special Land Acquisition Collector acted illegally and without jurisdiction in reopening the matter and passing a supplementary award. Such a contention was raised on the basis of a decision of this Court. Furthermore, the Special Land Acquisition Collector is a creature of the statute. He, therefore, was bound to act within the four-corners thereof. If he has passed an order invoking a provision of law which was not applicable, he committed jurisdictional error and the order impugned before the High Court by the respondents was a nullity. We, therefore, cannot accept the contention of the appellants that the respondent was not a person aggrieved and thus could not have maintained the writ petition. It was submitted that the respondents having filed a writ petition after a period of eight years, the same ought not to have entertained. Primarily a question of delay and latches is a matter which is required to be considered by the writ court. Once the writ court has exercised its jurisdiction despite delay and latches on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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