ADI C P WADIA Vs. SPECIAL LAND ACQUISITION OFFICER

JUDGEMENT

(1.) This is a petition for a writ of mandamus calling upon the 1st respondent who is the special land acquisition Officer(6) Bombay of Bombay Suburban District to file a reference in this court against his award as applied for by the petitioners by the application dated 17-10-1975 and to forthwith pay to the petitioners a sum of Rs. 64,532.25 being the undisputed amount of awarded compensation and for costs.

(2.) Undisputed facts relevant for the determination of this petition are as follows:- The petitioners are the trustees of a religious and charitable trust under a will of one Ardaseer Hormarjee Wadia and as such they hold amongst various properties certain lands situated at Kole kalyan being survey No. 193 (part) admeasuring.... 7 acres, 20 Gunthas. By a notification dated 2 December, 1963, published in the Government Gazette on 15th December 1963 a notice under section 4 of the Land Acquisition Act, 1894, public purpose viz. development and utilisation of the said land for the industrial and residential area. A final notice under Sec. 6 of the said act dated 1-10-1964 was also issued and published thereafter in the gazette dated 15-10-1964, By a further notice dated 1-11-1964 issued under clauses 3 and 4 of Sec. 9 of the said Act. the 1st respondent called upon the petitioners to file their written statement mentioning the nature of the petitioners' interest in the said land, the amount and particulars of their claim for compensation and their objections, if any, to the measurements under Sec. 8 of the said notice, the petitioners through their Architects, valuers and Surveyors M/s Sane and Paymaster, filed on 7th December 1964 their claim for compensation amounting to Rs. 8,34,900/- for the said acquired land. As the 1st respondent did not declare the award till about June 1975, the petitioners served a notice dated 17-6-1975 on the 1st respondent pointing out that the award was not made for about 11 years and calling upon him to declare the award immediately or to show reasons for the delay. Thereafter the 1st respondent issued a notice dated 16th Sept. 1975 (Ex. B to petition) initmating making of the award. In the said notice the 1st respondent pointed out that the said award was made by him on 16th September 1975 under Sec. 11 of the Act, that the sum of Rs. 64532.25 was payable to the petitioners that they should appear personally before him or by duly authorised agents before 2 p. m. on 17th September 1975, that they may accept the said payment ' under protest' without prejudice to the petitioners right to have the matter referred to the Civil court, that interst will not be payable in the case of failure to appear, and that the payment will be made on production of upto date record of rights and also on a certificate from S. O. O. B. S. D. to the effect that the land in question was not affected by the Maharashtra Agricultural Lands (ceiling on Holdings) Act. The said notice also pointed out that the possession of the said land would be taken on site on the same dated at 11 a.m. and requested the petitioners to remain present on the land to give vacant possession of the same. Accordingly on 17th September 1975, tha Manager of the petitioners remained present on the site to give possession of the land to the respondents. However, the concerned authorities did not turn up and the possession thereof was not taken. On 6th October 1975, the 1st respondent addressed a letter to one Yeqalin Machol Galwano stating that the said land was acquired and an award in respect thereof was already made by him on 16th September 1975, that excepting the owners of the land i. e. the petitioners, nobody had made any claim before him in respect of the said land, that the surveyr of the 1st respondent office was deputed on 17th September 1975s to take possession of the said land, Land when he found that on a small portion of the said land there was a structure open from all sides and a cross had been installed on the said land. He had pointed out that the said structure was erected by the said Galwano recently and the owners of the land i. e. the petitioners had requested the said Galwano to remove the said structure but she had refused to do so. Therefore by the said notice the 1st respondent requested her to remove the said structure and cross within 8 days from the receipt of the notice and that his surveyer would attend at the property on 22-10-1975 at 11 a. m. to take possession of the land and that if she refused to remove the said structure and the said cross forcible possession of the land, on which the said structure & the said cross would be removed with the help of the police. A copy of the said letter was also forwarded to the police Inspector, Santa Cruz, Bombay, with a request to arrange proper help to enforce surrender of the said land, structure and cross under section 47 of the land acquisition Act, on 22nd October 1975 possession was fixed to be taken on 23-10-1975. According to the petitioner on 23-10-1975, the acquiring authorities did not remain present although police had remained present to render help for taking possession. Possession was therefore not taken by the acquiring authorities.

(3.) The said facts were recorded by the petitioners' manager by his letter dated 23-10-1975 to the 1st respondent where in it was pointed out that his representative along with the police party was also on the spot but as the representative of the Deputy Engineer, Reclamation Project Division No. III, the Acquiring Authority had not turned up. The petitioners pointed out that they were ready and willing to hand over possession of the said land. Thereafter the petitioners by their attorneys' letter dated 24th March 1976 wrote letter to the 1st respondent demanding justice in the matter and to pay compensation payable to the petitioners which was wrongfully withheld by the 1st respondent. The 1st respondent by his letter dated 25-3-1976 addressed to the attorneys of the petitioners pointed out that there had been no dispute regarding making payment to the petitiones and that the awarded amount would be paid to the petitioners as soon as possession of the land was taken that the possession of the land could not be taken since there was onetemporary structure and one cross standing on the land, that the matter had been referred to Government for orders and that as soon as Government orders were received, possession of the land would be taken and payment made to the petitioners as per award, he also pointed out that as there was no dispute regarding ownership of the land in question of reference to court under Sec. 39 of the land Acquisition Act did not arise and that as regards reference under Sec. 18 to the court the same would be filed in the High Court after the possession of the land was taken and payment made to the petitioners. As however, the 1st respondent failed to make the reference and/or to make the payment awarded to the petitioners, the petitioners filed this petition for the aforementioned relief on the grounds that the 1 st respondent had failed in his obligation under the Act (1) to pay the amount awarded by him to the petitioners and (2) to make reference to this court under Sec. 18 of the said Act. The 1st respondent in his affidavit in reply has not disputed the facts which are stated above. As regards failure to take possession, he has pointed out that under the circumstances stated above, no possession could be taken and the same has not still been taken. However, the main and the only cnntention raised by the respondents in their affidavit in reply for denying the relif claimed by the petitioners, shortly stated, is that the subsequent legislation viz.