MODI KUBERDAS HARGOVINDDAS Vs. STATE OF BOMBAY NOW GUJARAT

JUDGEMENT

(1.) The petitioner in Special Civil Application No. 958 of 1966 was the Inamdar and owner of the village called Saijpur Bogha and the petitioners in Special Civil Application No. 959 of 1966 were the tenants of the lands belonging to the Inamdar of the village. In 1942-43 certain lands out of this village were requisitioned for the purpose of construction of an aerodrome and notifications were issued for the purpose whereafter possession of the lands was taken. In 1949 it was decided to acquire these lands whereupon notifications dated 16th March 1949 were published in the Bombay Government Gazette dated 31st March 1949 whereby it was proposed to acquire the said lands for the purpose mentioned therein and it was declared that on the publication of the notifications the said lands vested in the Government as mentioned therein. It may be mentioned that the original order of requisition was passed under the Defence of India Act 1939 and as that Act had already expired an Ordinance was issued sometime in 1946 validating the requisitions that were made and before the expiry of that Ordinance an Act called the Requisitioned Land (Continuance of Powers) Act 1947 i. e. Act No. XVII of 1947 was passed whereby certain powers under the Defence of India Act were continued and power to acquire property subject to the conditions mentioned in the Act was also given. The order of acquisition passed in 1949 was passed under Act XVII of 1947 and pursuant to the provisions of that Act the lands of the Inamdar vested in the Government concerned as from the date of the notifications. Some time in 1950 the Government made an offer of a certain amount of compensation but as that offer was not acceptable to the owners of the property acquired a reference had to be made to an arbitrator according to the provisions of the Act referred to above and it was only in December 1958 that an arbitrator was appointed to assess and award compensation according to the provisions of the aforesaid Act and the Rules then in force. The arbitrator entered upon the reference on 12th January 1959 and ordered notices to be issued to some of the interested persons and made the notices returnable in March 1959 i. e. after more than 63 days after entering upon the reference. The petitioner in Special Civil Application No. 958 of 1966 came to know that arbitration proceedings had commenced and on the application of the petitioner to be made a party he was joined as a claimant. The arbitrator thereafter made an award on 31st August 1959 against which the petitioner in Special Civil Application No. 958 of 1966 and the petitioners is Special Civil Application No. 959 of 1966 filed several First Appeals. According to the petitioners these appeals came up for hearing before the High Court on 19th and 20th July 1966 when the vires of the Requisitioned Land (Continuance of Powers) Act 1947 was challenged. But under the impression that the vires of the Act could not be permitted to be canvassed in the appeals which related to proceedings under a special Act the petitioners preferred the present two Special Civil Applications. It was on these facts that the Special Civil Applications have come to be filed.

(2.) At the outset it may be mentioned that the admitted position according to all the parties to these petitions is that the original order of requisition was passed under the Defence of India Act 1939 and that the order of acquisition of the property was passed under Act XVII of 1947 It is also not in dispute that Act XVII of 1947 was followed by Act XXX of 1952 sec. 24 whereof while repealing Act XVII of 1947 provides that any action taken under the repealed Act should be deemed to have been done under the Act of 1952 as if that Act was in force on the day on which such action was taken. It is therefore that the Arbitrator seems to have referred to the Act of 1952 in the award proceedings. Mr. Chhatrapati has challenged the validity of the relevant provisions relating to payment of compensation in both the enactments in Act No. XVII of 1947 and Act of XXX of 1952. Sec. 6 of the Requisitioned Land (Continuance of Powers) Act 1947 (Act No. XVII of 1947) is as under:-

(3.) Before we discuss the question of the validity of the impugned provisions it would be necessary to refer to some of the provisions of the different legislative enactments which have preceded Act No. XVII of 1947 The first is the Defence of India Act 1939 sec. 19 whereof provides for compensation to be paid in cases where any action of the nature described in sub-sec. (2) of sec. 299 of the Government of India Act 1935 has been taken. The relevant portion of this section is as under:- Compensation to be paid in accordance with certain principles for compulsory acquisition of immovable property etc.-