Judgement

MITTER, J. :-This is an appeal by a certificate under Art. 133 (1) (c) of the Constitution granted by the High Court of Bombay against the judgment of that court dated August 7, 1964 in Miscellaneous Petition No. of 1962 declaring cl. (b) of sub-s. (3) of S. 8 of the Requisitioning and Acquisition of Immovable Property Act, 1952 (Act 30 of 1952) including the word, "whichever is less" ultra vires Art. 31 (2) of the Constitution and as such void.

2. The facts are as follows. On May 2, 1942 a plot of land bearing S. No. NA-29-A of Juhu, Bombay, was requisitioned for the purposes of the Union of India under R. 75-A (1) of the Defence of India Rules for military purposes. It is common case that this plot of land was acquired for the construction of a road leading to a military aerodrome at Juhu during the last war. The land originally belonged to the husband of the first respondent who claims to have succeeded to it by virtue of a will. The owner of the plot was receiving compensation for the requisition until December 29, 1952 when a notification was issued under S. 7 (1) of the Requisitioning and Acquisition of Immovable Property Act enacted on March 14, 1952, hereinafter referred to as the Act. The notification was to the effect that the land was being acquired by the Government of India, Ministry of Works, Housing and Supply, that it would vest in the Government from the date of the notification and there was a declaration of vesting in the notification itself. As a result of the notification, the owner of the land became entitled to claim compensation. The second respondent, hereinafter referred to as the Collector of Bombay, offered compensation at the rate of Rs. 11/- per sq. yard on February 20, 1961. The petitioner, the first respondent herein, claimed at the rate of Rs. 100/- per sq. yard plus the usual l5 solatium for compulsory acquisition. In the absence of an agreement between the, parties the Chief Judge, Court of Small Causes, Bombay was appointed as arbitrator under S. 8 of the Act. The arbitrator gave notice to the petitioner to put in her claim and also to the Government of India to put in its statement of valuation. The petitioner claimed compensation at the rate of Rs. 75/- per sq. yard plus 15 solatium for compulsory acquisition while the offer of the State was only Rs. 11/- per sq. yard without any solatium. Before the arbitrator could make much headway in the matter, the first respondent preferred a petition in the High Court of Bombay on September 18, 1962 wherein the main prayers were (1) a declaration that the provisions of S. 8 (3) of the Act were unconstitutional as infringing Arts. 31(2), 19 (1) (f) and 14 of the Constitution of India, and (2) the issue of an appropriate writ directing the arbitrator to forbear from awarding compensation on the principles laid down in S. 8 (3) of the Act and commanding him to award just and proper compensation in accordance with law.

3. The Union of India filed an affidavit in opposition affirmed by an Executive Engineer of the Bombay Aviation Division wherein many and diverse objections were raised to the petition. Before the High Court, counsel for the petitioner confined the challenge to the validity of S. 8 (3) of the Act to d. (b) only. The arguments advanced on behalf of the Union of India were: (1) that S. 8 (3) of the Act did not infringe any of the Articles of the Constitution mentioned in the petition and (2) that the petitioner was entitled to no relief because of the delay in presentation of the petition to the High Court.

4. The High Court negatived the contentions put forward on behalf of the Union Of India and allowed the petition holding that cl. (b) including the words "whichever is lass of sub-s. (3) S. 8 of the Act was ultra vires Art. 31 of the Constitution and as such void. The court gave a direction that the assessment of compensation would have to be made subject to this declaration. Hence the appeal.

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