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PETITIONER: NEW REVIERA CO-OP. HOUSING SOCIETY & ANR. ETC.

       Vs.

RESPONDENT: SPECIAL LAND ACQUISITION OFFICER & ORS. ETC.

DATE OF JUDGMENT04/12/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J)

CITATION:  1996 SCC  (1) 731        JT 1995 (9)   215  1995 SCALE  (7)303

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CIVIL  APPEAL NO. 11877 OF 1995          [Arising out of SLP [C] No. 13371 of 1993]                             AND              WRIT PETITION [C] NO. 853 OF 1993 Harjang Singh Grewal [Retd.] v. Union of India & Anr.                          O R D E R      Leave granted.      It  is   contended  by  the  learned  counsel  for  the appellants that  the delay  in making  the award renders the proceedings under  s.4(1)  and  s.6  declaration  lapsed  by operation  of   s.11-A  of   the   Land   Acquisition   Act. Unfortunately, this  point was  not argued  before the  High Court. Learned  counsel  contends  that  this  question  was raised in  the High  Court but  was not  dealt with.  It  is settled law  that this  Court would  consider  only  matters dealt with or stated in the order of the High Court. Several grounds might  have been  raised, but it often times happens that only  a few would be argued when the case was heard. We cannot look  into the  averments made in affidavits filed by the parties in this Court. Under these circumstances, it can be assumed  that  though  the  contention  was  raised,  the counsel had  not argued  the matter.  Therefore,  we  cannot permit the counsel, to raise mixed questions or facts of law or disputed questions for the first time in the appeal.      It is next contended that the Land Acquisition Officer awarded at  Rs.50/- per  sq.ft. A total extent of 51,000 sq. ft. land is involved in these proceedings and in the city of Bombay it  would be  difficult for the appellants to acquire alternative flats  with  the  amount  offered  by  the  Land Acquisition Officer.  The theory of restitutive compensation is not applicable to determine compensation under s.23(1) of the Land  Acquisition Act 1 of 1894. It is also sought to be

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contended that  the respondents  admitted in  the  affidavit filed in  the High  Court that the value of the compensation is  much   more  than   what  was  determined  by  the  Land Acquisition Officer. Since reference proceedings are pending in the  High Court on the original side for determination of compensation, we  decline to  go into  the question.  It is, therefore, argued that a direction may be issued not to have the appellants ejected till the reference proceedings become final. We  cannot accede  to the  contention. Once the award has been  made and  compensation has  been deposited or paid under s.31  of the  Act, the  Land  Acquisition  Officer  is entitled to take possession and the possession thereby taken stands vested  in the  State under s.16 of the Act free from all encumbrances.  Under those circumstances, we cannot give the  direction   sought  for.   The  appeal  is  accordingly dismissed. No costs.      It is needless to mention that a request may be made to the learned  Judge of  the original  side to  dispose of the reference application as expeditiously as possible. C.A. @ SLP (C) NO.13371/93 & WP (C) No.853/93:      Leave granted. The appeal and the Petition are disposed of together.      The only  controversy raised  in these cases is whether Art.21 of  the Constitution  would apply  when the  land  is acquired by  the  State  exercising  its  power  of  eminent domain.  Admittedly,  New  Riviera  Coop.  Housing  Society, Bombay consists  of several  flats which  was  notified  for acquiring the  land for  public purpose.  Flat  No.27  which belonged to  the appellant  is  part  of  the  above  flats. Consequent to the notification published under s.4(1) of the Act followed  by declaration under s.6, the land Acquisition Officer  made   his  award   under  s.11  on  22.1.1993.  He determined the  compensation at  a sum of Rs.13,11,299/- for the entire building. Dissatisfied with the amount offered by the Land  Acquisition Officer,  a reference  under s.18  was sought for  and the  matter is  now pending  decision in the court for determination of compensation.      The appellant  herein filed  a writ petition contending that  the   acquisition  is   violative  of  Art.21  of  the Constitution violating  his dignity  of person, and deprives his right  to shelter  and also  make  him  shelterless.  He referred to  various steps taken by him to have his title to the flat established. It is not necessary to dilate upon all the details  in that  behalf. Suffice it to state that as on the date  of the  notification, he  was the  owner  of  flat No.27. The  question  is  whether  the  acquisition  offends Art.21. The  State with  a view  to serve  public purpose is entitled to  acquire the  land by  exercising its  power  of eminent domain and the L.A.O. is empowered under s.23 of the Act to  determine the  compensation to  the  land  acquired. Under the  scheme of  the Act  if the  owner is dissatisfied with the determination of compensation made by the Collector under s.11,  a reference  under s.18 is provided for and the court  would,  on  addiction  of  evidence  by  the  parties determine proper  compensation payable  to the acquired land under s.23(1) of the Act. Burden is on the claimant to prove the   compensation    offered   is   inadequate   and   seek determination of compensation under s.23(1).      Three decisions  of this  Court have  been cited by the learned counsel  for the  appellant for  which reference  is unnecessary for  the reason  that in  none of  the cases the question of  validity of acquisition by the State exercising its power of eminent domain was put in issue on the anvil of Art.21. All  those cases  relate  to  providing  alternative sites. Right  to shelter is undoubtedly a fundamental right.

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A person may be rendered shelterless, but it may be to serve a larger  public purpose.  Far from  saying that  he will be rendered shelterless  this Court  did not  circumscribe  the state’s power  of eminent domain, even though a person whose land is  being acquired  compulsorily for the public purpose is  rendered   shelterless.  If  that  contention  is  given credence no  land can  be acquired  under the  Act  for  any public purpose  since in all such cases the owner/interested person would  be deprived of his property. He is deprived of it according  to law.  Since the  owner is unwilling for the acquisition of  his property  for  public  purpose,  s.23(2) provides solatium  for compulsory  acquisition  against  his wishes. Under  those circumstances,  it cannot  be held that the acquisition  for public  purpose violates  Art.21 of the Constitution or  the right to livelihood or right to shelter or dignity of person.      In a  case where  the State comes forward with proposal to provide  alternative sites,  certainly  the  court  gives effect to  that proposal  and appropriate directions in that behalf were  issued by this Court. But that principle cannot be extended  as a  condition in every case of acquisition of the land  that the  owner must  be given alternative site or flat. Only  exception was  as provided in s.31(3) of the Act which does not apply to the petitioner. If that principle is extended, in  no circumstances  the State  could acquire any land for public purpose. Thus considered, we are of the view that there  is no  substance in the contention raised by the counsel for  the appellant  that the acquisition of the land violates  his   right  to   life  offending  Art.21  of  the Constitution.      It is  next contended  that the acquisition is vitiated by mala  fides. We  find no  substance in this contention as well. It is true that on the earlier occasion when the flats were requisitioned  by the State for public purpose, namely, allotment to  officers, Central  or State Governments at the instance of the owners, litigation had ended by an amendment to the local Act giving further life for the eviction of the person in  possession. It  is not  necessary in this case to dilate on  that aspect  of the  matter. There  was a dispute with regard  to the  title between  the  appellant  and  his predecessor in  title. That is not a ground to hold that the acquisition is  mala fide.  As stated earlier, since all the flats including  flat No.27  have been  acquired for  public purpose, the question of mala fides does not arise.      The  appeal  and  the  Writ  Petition  are  accordingly dismissed but in the circumstances without costs.