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PETITIONER: SAM HIRING CO.

       Vs.

RESPONDENT: A.R. BHUJBAL & ORS.

DATE OF JUDGMENT:       12/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (2)   406        1996 SCALE  (1)658

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have  heard the  learned counsel on both sides. This appeal arises  from the  order of  the Division Bench of the Bombay High  Court made in Appeal No.893/92. The facts lying in short compass are stated as under:      The appellant is the tenant of the land which is a part of City  Survey Ne.56, which was sought to be acquired under the Maharashtra  Housing &  Area Development Act, 1976, (for short, ’Act’).  The superstructure  in City Survey No.56 was in a  dilapidated condition.  Therefore, the  Bombay Housing and Area  Development Board  had examined  the position  and decided that  a scheme  was required  to be framed under the Act for  reconstruction and  thereafter for allotment to the persons in occupation. When the acquisition proceedings were initiated after  finalisation of  the scheme,  notices  were given under  Section 5-A to the interested persons including the appellant  the appellant  had raised the contention that the tenement  in which  it was  carrying on the business was not part  of the  City Survey  No.56. It  is an  independent building and,  therefore, it  is not liable to be demolished for acquisition.  Based upon  that objection,  a report  was called for  from the  Executive Engineer  who submitted  the report  thereon  to  the  Land  Acquisition  Officer.  After considering  the   report,  he   submitted  a  proposal  for proceeding with  the acquisition.  It is not in dispute that except  this  structure,  all  other  structures  have  been demolished in  1981 and  the construction  is yet  to start. Ever since all others are, unfortunately, in transit camp.      Shri S.K.  Dholakia, the learned senior counsel for the appellant, has contended that by operation of the provisions of Section  2(7) read  with Section  2(9), the  building  in occupation of  the appellant  it non-cess  payable building. Consequently, the  building which is in exclusive possession in Chapter VIII, is not liable to be proceeded with, if  the value of the reconstruction is Rs.500/- per sq.mt. or below.

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Since a  certificate in that behalf has already- been issued in support  thereof, the  action taken  for  demolition  and acquisition is  not  according  to  law.  After  the  report submitted by  the Executive  Engineer, the  Land Acquisition Officer had not given any independent hearing nor called the Executive Engineer  for cross-examination.  Therefore it  is violative of  the principles  of natural  justice. The third contention raised  is  that  the  Land  Acquisition  Officer should have  considered all the objections and given finding on each of the objections before submitting his proposal for further action.  Shri M.L. Verma, the learned senior counsel resisted all these contentions.      Having   given    consideration   to   the   respective contentions, the  question arises  whether the  structure on which the  appellant is tenant is an independent building in City Survey  No.56? Before  the Division  Bench of  the High Court, the  counter-part of Shri S.K. Dholakia, had conceded that the  principle contention raised was that the shed only "is not liable to be acquired even though the shed is a part of the  plot,  City  Survey  No.56."  The  gravamen  of  the complaint is  that the Board can move the Government only to acquire  the  building  for  the  purpose  of reconstruction exercising  power  under  Section  76(d)  of  the  Act.  The Division Bench  has held  that p1ain reading of Section 2(7) of the  definition of  ’building’ makes  it  clear  that  it includes a  tenement let  or intended  to be let or occupied separately and  a house,  out-house, stable,  shed, hut  and every other  such structure.  On account of that finding, it was held  that the structure in which the appellant has been carrying on the business is part of City Survey No.56 as has been conceded  by the  learned counsel  who appeared for the appellant in  the High  Court and  as such  is liable  to be acquired. Once  it is  concluded that he is a tenant or that his shed is part of the building, the question  whether  the tenant is independently paying cess under the Act as defined under Section  2(9)  is  not  of  much  relevance.  It  must therefore, be  concluded that  the structure  in  which  the appellant is  carrying his  business is  part  of  the  City Survey No.56.  The finding  of  the  authorities  cannot  be disputed that  the structures  are in  dilapidated condition and requirhe  demolition  for  reconstruction.  It  being  a finding  of   fact,  the   necessary  conclusion   is   that restructure requires to be done in accordance with law.      The question then is: whether the appellant is entitled to the  further hearing?  After the  report was submitted by the Executive  Engineer with regard to the objections raised by the  appellant, the  Division Bench of the High Court has pointed out that the Land Acquisition Officer had considered the objections  after hearing him and with a view to satisfy himself whether  the objections raised by the appellant were tenable, he  required factual  material and so he called for the  report  from  the  Executive  Engineer.  The  Executive Engineer’s  report  was  submitted  clearing   the  position and  the  finding  is  not  adverse  to  the  appellant  but beneficial  to  him.  Therefore,  the  need  to give further opportunity does not arise nor is there any need to call the Executive Engineer  for cross-examination.  Accordingly, the principle of natural justice has not been violated.      The  Land   Acquisition  Officer   is  not  a  judicial authority or  a quasi-judicial  authority. He  exercised the power under  Section 5-A as an administrative authority. But the Act requires that he should consider the objections and, if asked,  to give  an opportunity of hearing. In this case, opportunity of  hearing was  given and the objections raised were considered.  The principle  of natural justice has been

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complied with.  He was not required to elaborately deal with each of  the objections  and submit  the report.  Considered from this  perspective, we  do not  think that  there is any error of law warranting interference.      The appeal is accordingly dismissed. No costs.