Case: State Of Maharashtra  Vs. Reliance Industries Ltd

2. In W.P. No.1956 of 1994, the premises admeasuring 1478 sq. mts. on the third floor of the building i.e. "Reliance Centre" at 19, Walchand Hirachand Marg, Ballard Estate, Bombay is the premises. The Controller of Accommodation had requisitioned the said accommodation under the provisions of section 6(4)(a) of the Bombay Land Acquisition Act, 1948 (hereinafter referred to as "the Acquisition Act"). It had been allotted for use and occupation by Anti Corruption Bureau, Prohibition and Intelligence Bureau of the Government of Maharashtra and was also partly occupied by Deputy Controller of Rationing,Department of Civil Supplies.3. W.P. No.1679 of 1991 was filed by Reliance Industries Ltd. challenging the requisition order dated 23.1.1970 in view of the judgment of this Court, disapproving withholding of requisitioned property for an unreasonable period of time.4. The State Government issued a notification under section 4 of the Act to acquire the entire third floor premises admeasuring 167.50 sq. mtrs. in the building. Notice was issued for the purpose of an inquiry under section 5A on 28.12.1992 that was served on 02.01.1993. In pending writ petition an amendment application was filed to incorporate the challenge to the land acquisition proceedings. However, on objections being filed, the writ petition was disposed of with liberty to challenge the acquisition proceedings independently. Declaration under section 6 was issued on 23.6.1994. Notice under section 9 of the Act was issued on 29.7.1994 which was served on 2.8.1994. Thereafter, Reliance Industries Ltd. filed fresh writ application out of which the present appeal arises.5. In W.P. No.1384 of 1997, the respondentis the lessee of the land owned by the Government. The building is known as "Express Building" at Plot No.18, Block No.1, Back Bay Reclamation, Bombay. The Governor of Bombay had granted the registered lease on 13.3.1956. The second floor comprised in 4500 sq.ft. was sought to be acquired.6. Earlier vide order dated 25.9.1968 the said floor of Express Newspapers building was requisitioned for use of State Government and was allotted to the 5th appellant, i.e., Controller of Rationing, Food & Civil Supplies Department. Since the requisitioning continued for an unduly long period, Express Newspapers Ltd. filed W.P. No.2269/1992. During the pendency of the same, the State Government initiated the acquisition proceedings by issuing a notification under section 4 with respect to thepremises admeasuring about 325.15 sq.mtrs. needed for Food & Civil Supplies Department to accommodate the office of the Controller of Rationing, Food & Civil Supplies. Notice under section 9 of the Act was issued. Thereafter, declaration issued under section 6 of the Act was withdrawn. Subsequently, a fresh notification under section 4 was issued on 28.7.1996 in relation to the vacant premises of second floor admeasuring 345.18 sq.mtrs. Objections were filed, an inquiry under section 5A of the Act was held, followed by a declaration under section 6 which came to be issued on 17.4.1997 and notice under section 9 on 23.7.1997. Thereupon, writ petition had been preferred out of which the appeal arises.7. The High Court has held that without acquisition of land, part of the building could not be acquired. The definition of `building in section 3(a) of the Act is an inclusive one. The land would include all benefits arising out of land for the purpose of acquisition as well as things attached to the earth or permanently fastened to anything attached to the earth. In other words, the High Court has held all the structures or the trees or any material attached or fastened to the land to be acquired, would also be the subject matter of acquisition along with such land. But under the provisions of the Act without the land to which the things are attached or permanently fastened, such things by themselves and singularly cannot be the subject matter of acquisition. Though the term `include would suggest the definition of "Land" to be exhaustive and extensive, an interpretation of the term has to be in the context of and cannot be in isolation. The acquisition under the Act cannot be merely of the benefits out of or the things attached or permanently fastened to the land without acquiring the land itself. The High Court has further held that a part of the house or building which can be acquired in the absence of objection in that regard by the owner, would necessarily include the land underneath or appurtenant to such part of the house or building. Merely because there is dual ownership, it would not mean that acquisition proceedings under the said Act could be of limited interest in the land.8. Against the judgment and order passed by the High Court, the appeals have been preferred by the State of Maharashtra, this Court has directed maintenance of status quo. Application for subsequent events has also been filed indicating that efforts have been made to get the premises vacated and to withdraw the acquisition proceedings. However, acquisition has not been withdrawn so far. In our opinion, it is of no consequence, as acquisition cannot be withdrawn.

Reasoning:
15. The provision contained in section 49 makes it clear that there can be acquisition of part of house or building but if the owner thereof desires that whole of his house or manufactory or building shall be so acquired, the provisions can not be used for the purpose of acquiring a part only of any house, manufactory or other building and when a part is proposed to be acquired, owner has right to object that the whole building or house should be acquired and not the part, and the owner at any time before the Collector has made his award under section 11, by notice in writing, withdraw or modify, his expressed desire that the whole of such house, manufactory or building shall be so acquired. Second proviso makes it clear that if any question arises whether any land proposed to be taken under the Act does or does not form part of a house, manufactory or building within the meaning of section 49(1), the Collector shall refer the determination of such question to the court and shall not take possession of it until after the question has been determined, and the court while deciding such a question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building.16. In our opinion, provisions of section 49 of the Act make it clear besides the inclusive definition under section 3(a), that there can be acquisition of part of building or house and owner has the option to express his desire that the whole of it should be acquired and not the part, as the case may be. The court has the power to decide on a question being referred under the second proviso, whether land proposed to be taken forms part of the house, manufactory or building. The court has to take into consideration the question whether land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building. If the court holds otherwise, obviously the possession of the land shall not be taken. There can be acquisition of the house or building or manufactory under the provisions of section 49(1) or acquisition of part. It is not a case where any of the owners of the building has desired that whole of building be acquired. In case such intention would have been expressed, it would have been incumbent to acquire the whole of thedefinition of land is of wide connotation. It cannot be construed in narrow sense to render provisions of the Act otiose or impracticable.Having regard to the true intent of the meaning of the word `land, the only interpretation possible in the context is the interpretation as made by us, inasmuch as such interpretation will not take away the very meaning of the land. In the matter on hand, owner of the land is the State whereas the owner of the building is a respondent. Since, building cannot stand without the land, the building also becomes part of the land. However, since the owner of the building is different from the owner of the land, and if a portion of the building is required for public purpose, it is open for the State to acquire that portion of the building by paying adequate compensation in respect of that portion of the building, as well as, in respect of proportionate diminution of the user if any of the land under Section 23 of the Land Acquisition Act, 1894, in accordance with law.In our opinion, the submission with respect to object and scheme as discussed in Girnar Traders (supra) and T.L. Prakash Ram Rao (supra) does not come in the way of acquisition. The object is to compensate the owner adequately. There is no doubt that pendency of acquisition proceedings are not to cause hardship to the affected parties. The purpose of the Act is to make additions for the public purpose and to award to the owners/ interested persons compensation in accordance with the provisions of the Act. The acquisition has been made for the public purpose in the instant case. The decision in the case of T.L. Prakash Ram Rao (supra) does not come in the way of acquisition. The court has observed that definition of the land is not exhaustive, but is inclusive definition; but by stretching any far it cannot be deduced that the dominant purpose need not be acquisition of land and the things attached to the said land can also be part of the acquisition. But if the dominant purpose is only to acquire a water source and then to notify the land involving the same, the said acquisition does not amount to acquisition of land and the Act is not at all applicable. That situation was totally different from the instant case as the entire floors are being acquired for the purpose of housing of the offices and there is acute paucity of such spaces particularly in Mumbai and nearby places. When flats can be sold independently, obviously they can be acquired also. As all the rights in the floor are being acquired and the land beneath it need not be acquired more so it belongs to the Government there can be valid acquisition of such floors independently without land in such cases.The instant matters are of dual ownership. In both the cases owners of the building are not the owners of the land. The land belongs to State of Maharashtra or Port Trust. In such a situation where the Government is the owner of the site, obviously Government could not have acquired the land and in the case of its own ownership, there was no necessity for the acquisition of land.In view of the authoritative pronouncement made by this Court in Special Land Acquisition Officer and Rehabilitation Officer, Sagar v. M.S. Seshagiri Rao & Anr. (supra), Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors. (supra), the decision in Raja Shyam Chunder Mardraj v. Secretary of State for India Council (supra) of Calcutta High Court, Dasarath Sahu v. Secy. of State (supra) by Patna High Court (supra), Makhan Lal v. Secy of State (supra) of Allahabad High Court which was followed in Dasarath Sahu (supra) and also the decision of Secretary of State v. Allahabad Bank Ltd. (supra) of the same High Court following Dasarath Sahu (supra) can no longer be said to be laying down a good law and are herebysubmission to that effect to be accepted would require ownership of the land with owner of the building and owner has required by expressing desire that the whole of the building with land be acquired is not the factual scenario in the instant case. The land upon which the building is standing need not be acquired and there is no necessity to acquire it. There can be acquisition of part of the building or the house or manufactory as the owners have not exercised their option to insist for acquisition for whole of the building as such only the rights which they have in the particular floors are being acquired. No doubt about it that under proviso to Section 49(1) there can be acquisition of land beside the part of the building, house or manufactory and when the land is proposed to be taken, the dispute as to whether it does or does not form part of the house, manufactory or building, the Collector shall refer the determination of such question to thedecision in Harsook Das Bal Krishan Das (supra) does not at all help the respondents. In the said case it has been laid down that there can be acquisition of land or part of building, In our opinion, when State is the owner then it is not necessary to acquire such an interest in the land.There is no dispute with aforesaid proposition but where part of building that too abuilding is being acquired, the land need not be acquired more so when the owner of building is not the owner of land and his entire interest in part of building can be acquired.The aforesaid submission is simply to be rejected. In case the building or portion is acquired without acquiring the underlying land there is no question of overreach of the States power to the eminent domain. Article 300A interdict taking of the property for a public purpose without compensating the owner for its loss. In case entire ownership of the land does not lie with the owner only the right which is capable of being acquired would be acquired not something which isThe building or part can be acquired and there is no question of acquisition of the land in such cases. In adjudication of the compensation as per the provisions of Section 23, the State is not depriving the respondents of their property. There is acquisition of land by fair procedure along with reasonable compensation. The action has been taken by the State in accordance with law. The action is legally justified. Thus, there is no question of eminent domain being misused or violation of provisions of Article 300A of the Constitution ofsubmission cannot be accepted as the respondents are not the owner of the underlying land. Secondly, the acquisition of a particular floor as per the provision of section 49 of the act is permissible and the entire interest of owner in a particular portion has been acquired for that he would to be compensated. It is not the case of partial acquisition of the interest on a particular floor. When without selling the land, in a building, a particular floor can be sold why there could not be acquisition of particular floor for publicis no dispute that in the aforesaid proposition. The owner has the right to use and enjoy a particular portion but owner cannot set up a plea for acquisition of an interest when he does not have that particular right or interest or title. His right to manage it, right to decide, how it shall be used, right to income from it has to be in accordance with the law. Right of individual has to give way to the public purpose on being duly compensated by way of fair procedure.We find no merit in the aforesaid submission. Firstly, it presupposes ownership of land also is with owner of building, if that be so, the owner can exercise the option for acquisition of the entire building and land which is available under Section 49 of the Act and besides that the owner can be compensated also in case he is having any interest in the land and in case his land is rendered of less utility obviously he can claim compensation under the provisions of the Land Acquisition Act. If the land is rendered value less then also adequate compensation can be claimed under the provisions of Section 23 in accordance with law. In case right is affected in land which is not acquired by severance, for that also compensation can be claimed. Thus, the submission so placed is factually incorrect and legallythe aforesaid case there was notification under section 4 of the Act for acquisition of seven units of land with buildings. The buildings constructed on the land belonged to the respondent and were let out to tenants on rent. This Court has held that when notification is of a single unit whatever may be the interest of the owners thereof may have therein the purpose of acquisition is to acquire all interest which clog the right of the Government to full ownership of the land. In the instant cases, as the ownership of the land does not lie with the respondents, thus, it was not necessary to acquire the land. The fact in the said case does not help at all. It has been laid down that acquisition of entire interest in the part is required and there cannot be acquisition of the part of interest in part of the building, house or manufactory. The entire interest of the owner has to be acquired and that has been precisely done in the instantquestion in the above matter was as to the method for determining the value of property that has to be adopted in the facts of each case. No doubt about it when land and building once married becomes one unit, neither land nor building can thereafter be valued separately. But this would not come in the way of determining the valuation of a particular floor, all the aspects of the owners interest and the bundle of other rights can be taken into consideration including support provided by the land and value of the land in the locality etc. Value of the part of the building can also be accordingly assessed.