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1992 Supreme(Bom) 278
IN THE HIGH COURT OF BOMBAY
D. R. Dhanuka, J.
Special land Acquisition Officer (I), Bombay
And
Bombay Municipal Corporation and another ...Claimants.
Land Acquisition Reference No. 25 of 1972, decided on 6-11-1992.
Advocates appeared :
C.J. Shah with M.R. Gaokar, for SLAO.
R.J. Dalal with A.J. Bhor i/b B.C. Nanal, for acquiring body-claimant No.1.
S.A. Gandhi i/b. Kanga Co., for claimant No.2.
Headnote:BOMBAY LAND ACQUISITION ACT, 1948
Section 5 (1).
See Land Acquisition Act, Sections 3 (b) and 30.
LAND ACQUISION ACT, 1894
Section 3 (b)-Bombay Municipal Corporation Act, 1888-Sections 69, 70 and 71-Expression-Person interested in Section 3 (b)-Definition of No lease deed in favour of lessee by Municipal Corporation-Lessee in constructive possession-Lease terms acted upon by parties for two decades.
Held such a person for purpose of act is person interested. He is entitled for apportionment of compensation.
The definition of the expression "person interested" in Section 3 (b) of the Land Acquisition Act, 1894 is an inclusive definition. The right to receive compensation for compulsory acquisition of land under the Land Acquisition Act, 1894 was not restricted to those persons who have a legal or proprietary interest or estate in the land and was available to all persons who had a right or claim to land even if such right or claim did not amount to legal or proprietary estate or interest in the land. The compensation awarded for compulsory acquisition was for value of all interests which were extinguished and that compensation was liable to be distributed equitably amongst persons having various interests therein and the Court must proceed to apportion the compensation so that the aggregate value of all interests was equal to amount of compensation awarded. It was also held in this case by the Division Bench of our High Court that the application of doctrine of part-performance under Section 53-A of the Transfer of Property Act, 1882, was not restricted only to those cases where possession of the person entitled to claim protection was in actual physical possession thereof. In other words, the Doctrine of part-performance could come to rescue of the claimant seeking share in compensation even when claimant was in legal, constructive or judicial possession of land, although no indenture of lease was executed by the lessor.
Sections 69, 70 and 71.
See Land Acquisition Act, Sections 3(b) and 30.
2. The material facts having bearing on the subject matter of this reference are as under :-
(a) On 7th February, 1944, the claimant No. 2 made an application to the Municipal Commissioner for grant of lease in perpetuity in respect of plot No. 32 admeasuring about 1900 square yards on the terms and conditions set- out in the said application. The Improvements Committee of the Municipal Corporation of Greater Bombay authorised the Municipal Commissioner to convey its acceptance of the offer made by claimant No. 2. In pursuance of such authorisation and sanction by the Improvements Committee of the Corporation as contemplated under section 92(4) of the Bombay Municipal corporation Act, the Municipal Commissioner conveyed the acceptance of the offer to the claimant No. 2 on 17th February, 1944. The claimant No.2 also paid a sum of Rs. 3792/- to the Municipal Commissioner as earnest money in part payment of the premium payable by the claimant No. 2. The claimant No.2 subsequently paid the balance of the premium to the Municipally Commissioner as calculated by the Municipally Corporation at the rate of Rs. 16-10-0 per square yards.
(b) On 7th February 1944, the claimant No.2 made similar application to claimant No.1 for grant of lease in porpetuity in respect of plot No. 32A. The Improvements Committee of the Muncipal Corporation sanctioned the transaction and authorised the Muncipal commissioner to convey his acceptance in respect of the offer contained in the said application also. The claimant No. 2 paid various amounts to claimant No. 1 towards premium.
(c) Before the physical possession of the said land could be handed over to claimant No. 2, the two plots being plot Nos. 32 and 32A were requisitioned for purposes of Military.
(d) On 6th September, 1949, the Collector of Bombay passed an order under sub-section (1) of section 5 of the Bombay Land Acquisition Act, 1948, requisitioning the said plots No.32 and 32A for public purpose. The Collector of Bombay was to pay a sum of Rs. 933.13 per annum as compensation for requisition of the said land.
(e) The Muncipal Authorities contacted claimant No. 2 with a proposal to the effect that the claimant No.2 may take constructive possession of the said plots of land and receive the amount of compensation payable by the Government of Maharashtra in pursuance of the Order of Requisition referred to herein- above. The claimant No.2 accepted the said proposal. On 23rd April, 1951, the claimant No. 2 addressed a letter to the Estate Agent and Land Manager Bombay Muncipal Corporation, Bombay confirming that
claimant No.2 was agreeable to the arrangement mentioned in Muncipal letter dated 28th March, 1951 and that the claimant No.2 was agreeable to receive the amount of compensation for the period commencing from 1st April, 1947. It was also agreed between Muncipal Corporation and claimant No.2 that compensation received by the Muncipal Corporation for the period commencing from 1st April, 1947 to 30th June, 1951 would be passed on by the Muncipal Corporation to claimant No.2 and in future the compensation would be received directly by claimant No. 2 from the Collector of Bombay. Thus the transaction of lease was followed and implemented by part performance and handing over of the constructive possession of the said plots of land in the manner aforesaid. By the said letter dated 28th March, 1931, bearing No. EAL/4419 the Muncipal Corporation informed the claimant No. 2 tha
