NEW REVIERA CO-OP. HOUSING SOCIETYversusSPECIAL LAND ACQUISITION OFFICER

            NEW REViERA CO-OP. HOUSING SOCIETY                                    A
                            v.
             SPECIAL LAND ACQUISITION OFFICER

                           DECEMBER 4, 1995

          [K. RAMASWAMY AND K.S. PARIPOORNAN, JJ.]
                                                                                  B

      Land Acquisition Act, 189.f-Sections 4, 8, 11-A, 16, 18, 23 fl], 31 [3].

      Acquisition-Award made-Compensation paid-Reference proceed-
ings pending for detennination of adequate compensation-Directions sought         C
for not to eject till proceedings become final-Held, once the award has been
made and compensation has been paid the LAO is entitled to take possession
and the possession thereby stands vested in the State free from all encumbran-
 ces-State not obliged to provide alternative site-No directions can be issued
not to eject the appellants till the reference proceedings become final.
                                                                                  D
       Constitution of India, 1951>--Artic/e 21-Applicability of in respect of
Compulsory Acquisition of land by Stat1'-0wners unwilling to offer their
lands-Whether violates Article 21-Held : No-The Land Acquisition Act
provides solatium for compulsory acquisition. The acquisition is in accord-
ance with law. Article 21 will not apply when the State is exercising its power   E
of eminent domain. Therefore the acquisition does not violate right to
livelihood or right to shelter or dignity of person.

      Practice and Procedure-New plea-Question raised before High Court
but not argued-Held, mixed question of facts or law cannot be allowed to
be raised for the first time in appeal.                                           F

      The Land Acquisition Officer issued a notification to the petitioner
Housing Society to acquire their land for public purpose. A declaration
was made and the award was passed. Thereafter, the LAO determined the
compensation at a sum of Rs. 13,11,2899.00 for the entire society. Dissatis·      G
lied with the amount of compensation offered by the LAO a reference
under Section 18 was made which was pending for decision in the Court.

      In the meantime the petitioner filed a writ petition. It was contended
on behalf of the appellant that the Acquisition was violative of Article 21
of the Constitution as it violated the dignity of the person and deprived         H
                                    169
    170                   SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A his right to shelter and also made him shelterless.
          Dismissing the appeal and the Writ Petition, this Court

           HELD : 1. Once the award has been made and compensation has
    been paid or deposited under S.31 of the Land Acquisition Act, the LAO
B   ls entitled to take possession and the possession thereby stands vested in
    the State under S.16 of the Act free from all encumbrances. (172-E)

          2. The State with a view to serve public purpose is entitled to acquire
    the land by exercising its powers of eminent domain and the Land Acquisi·
    tion Officer is empowered under s.23 of the Act to determine the compen·
c   sation to the land. Under the Scheme of the Act if the owner is dissatisfied
    with the determination of compensation made by the Collector, a reference
    is provided for and the court would on adduction of evidence by the parties
    determine proper compensation payable to the acquired land and burden
    is on the claimant to prove that the compensation offered is inadequate
D   and seek determination of compensation. (173-D-E)

          3. Right to shelter is undoubtedly a fundamental right. A person may
    be rendered shelterless but it may be to serve a large public purpose. Far
    from saying that he will be rendered shelterless the Court did not cir·
    cumscribe the State power of eminent domain, even though a person whose
E   land is being acquired compulsorily for the public purpose is rendered
    shelterless. If that is so no land can be acquired under the Act for any
    public purpose since in all such cases the owners/interested persons 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
F   purpose, S.23 (2) provides solatium for compulsory acquisition against his
    wishes. Therefore, the acquisition for public purpose cannot violates Ar·
    tide 21 of the Constitution or the right to livelihood or right to shelter or
    dignity of person. (173-G-H, 174-A]

          4. It is settled law that the Court would consider only matter dealt
G   with or stated in the order of the High Court. Several grounds might have
    been raised, but it often happens that only a few would be argued ""hen the
    case was heard. The supreme Court cannot look into the averments made
    in the affidavit filed by the parties. Under these circumstances, it can be
    assured that though the contention was raised, the counsel had not argued
H   the matter. Therefore, the counsel cannot be per.nitted to raise mixed
  NEW REVIERA CO-OP. HSO. SOCY. v. SPL. LAND ACQN. OFFiCER 171

questions or facts of law or disputed questions for the ffrst iime ln appeal.   A
                                                             [171-lt, 112·AJ
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. i1816 of
1995.

     From the Judgment and Order dated 26.4.93 of the Bombay High               B
Court in W.P. No. 475 of 1993.

                                    With

        Civil Appeal No. 11877 of 1995.

     From the Judgment and Order dated 7.6.93 of the Bombay High                C
Court in W.P. No. 949 of 1993.

                                    And

        Writ Petition (C) No. 853 of 1993.
                                                                                D
        (Under Article 32 of the Constitution of India.)

     S. Ganesh, P.H. Parekh, Arvind Kumar Sharma, N.N. Keshwani,
R.N. Keshwani and Sanjay Kumar for the Appellants.

     A.S. Nambiar, Ms. A. Subhashini, Shashi Kiran, D.M. Nargolkar and          E
Ms. Anil Katiyar for the Respondents.

        The following Order of the Court was delivered :

        Leave granted.
                                                                                F
       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   G
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        H
    172                   SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A not argued the matter. Therefore, we cannot permit the coun.sel, 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
B   proceedings and in the city of Bombay it would be difficult for the appel-
    lants to acquire alternative flats with the amount offered by the Land
    Acquisition Officer. The theory of restitutive compensation is not ap-
    plicable to determine compensation under s.23(1) of the Land Acquisition
    Act 1 of 1894. It is also sought to be contended that the respondents
c   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
D   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
E   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 disposed of the reference application as
    expeditiously as possible.

F CA. @ SLP (c) No. 13371/93 & VIP (C) No. 853/93:

          Leave granted. The appeal and the Writ Petition are disposed of
    together.

          The only controversy raised in these cases is whether Art.21 of the
G   Constitution would apply when the land is acquired by the State exerc.;sing
    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 t..i the appellant
    is part of the above flats. Consequent to the notificati~n published under
H   s.4(1} of the Act followed by declaration under s.6, the Land Acquisition
   NEW REVIERA CO-OP. HSG. SOCY. v. SPL. LAND ACQN. OFFICER 173

Officer made his' award under s.11 on 22.1. 1993. He determined the                 A
compensation at a sum of Rs. 13, 11, 299 for the entire building. Dissatis-
fied 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.
                                                                                    B
       The appellant herein. filed a writ petition contending that the. acquisi-
tion 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       c
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.0. 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            D
compensation made ·by the Collector under s.11, a reference under s.18 is
provided for and the court would, on adduction 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).
                                                                                    E
       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 acquis.ition by the state
exercising its power of eminent domain was pul in issue on the anvil of Art.
21. All those cases relate to providing alternative sites. Right to shelter is F
undoubtedly a fundamental right. 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 conten- G
tion 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 in unwilling for the acquisition of his property for public purpose,
s.23(2) provides solatium for compulsory acquisition against his wishes.
Under these circumstances, it cannot be held that the acquisition for public H
    174                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A 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
B   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
C   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 ma/a fides. We
    find no substance in this contention as well. It is true that on the earlier
D   occasion when the flats were requisitioned by the State of 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 to the matter. There was a dispute with
    regard to the title between the appellant and his predecessor in title. That
E
    is not a ground to hold that the acquisition is ma/a fide. As stated earlier,
    since all the flats including flat No. 27 have been acquired for public
    purpose, the question of ma/a fides does not arise.

          The appeal and the Writ Petition are accordingly dismissed but in
F   the circumstances without costs.

    P.C.                                          Appeal and Petition dismissed.