State of Kerala & Ors Vs. T.N.
Peter & ANR  INSC 63 (1 April 1980)
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 1438 1980 SCR (3) 290 1980
SCC (3) 554
CITATOR INFO :
F 1982 SC1214 (7) RF 1986 SC 468 (34,35)
Cochin Town Planning Act-S.34(1) validity of,
The Cochin Town Planning Act in particular
contemplates the creation of a town planning trust, the preparation of town
planning schemes (section 12) acquisition of lands in this behalf (section 32)
compensation for such compulsory taking (section 34) and modifications in the
manner of acquisition and the mode of compensation in the Kerala Land
The petitioners' writ petitions challenging
the validity of the Town Planning Act were allowed by the High Court on the
ground that the provisions of Section 34(1) and 34(2A) were unconstitutional
being violative of article 14 of the Constitution.
In appeal to this Court it was contended that
by the use of the provisions for making schemes under section 8 or section 10,
the authority may indefinitely immobilize the owner's ability to deal with his
land since section 15 clamps restrictions and this is unreasonable.
HELD: 1. City improvement schemes have facets
which mark them out from other land acquisition proposals. To miss the massive
import of the 15 specialised nature of important schemes is to expose one's
innocence of the dynamics of urban development. The statute has left it to the
government to deal expeditiously with the scheme and there are sufficient
guidelines in the Act not to make the gap between the draft scheme and
governmental sanction too procrastinatory to be arbitrary. [294 G-H]
2. Section 12(6) imparts finality to The
scheme and this corresponds to the declaration under section 6 of the Land
Acquisition Act. A conspectus of the relevant provisions of the Act makes it
clear that improvement scheme cannot hang on indefinitely and an outside limit
of two years is given for the preparation and publication- of draft schemes
from the time the initial resolution to make or adopt the scheme is passed by
the Municipal Council.
Conceptwise and strategy-wise development
schemes stand on a separate footing and classification of town planning schemes
differently from the routine projects demanding compulsory acquisition may
certainly be justified as based on rational differentia which has a reasonable
relation to the end in view namely improvement of towns and disciplining their
development. [295 F-G]
3. There is no substance in the argument that
if the land is acquired under the Town Planning Act no solatium is payable
while if the land is acquired under the Land Acquisition Act it is a statutory
obligation of the acquiring government to pay solatium. The Town Planning Act
is a special statute where lands have to be acquired on large scale and as
early and as quickly as possible so that schemes may be implemented with
promptitude. There is in addition a specific and purposeful provision excluding
some sections of the 291 Kerala Land Acquisition Act. In such circumstances it
is incredible that the authority acting under the Act will sabotage chapter
VII, in particular section 34, by resorting to the Kerala Land Acquisition Act
in derogation of the express provision facilitating acquisition of lands on
less onerous terms. [299C-D] Maganlal v. Municipal Corporation,  1 S.C.R.
23, referred to.
4. The amount of compensation payable has no
bearing on the distinction whether the lands are acquired for housing or
hospital, irrigation schemes or town improvement, school building or police
station. 5(a) The exclusion of section 25 of the Land Acquisition Act from
section 34 of the Act is unconstitutional. But it is severable. [302G] (b) The
only discriminatory factor as between section 34 of the Act and section 25 of
the Land Acquisition Act vis-a-vis quantification of compensation is the
non-payment of solatium in the former case because of the provisions of section
34(1) and that section 25 of the Land Acquisition Act shall have no application.
To achieve the virtue of equality and eliminate the vice of inequality what is
needed is the obliteration of section 25 of the Land Acquisition Act from
section 34(1) of the Town Planning Act. The whole of section 34(1) does not
have to be struck down. Once the discriminatory and void part in section 34(1)
of the Act is excised equality is restored. The owner will then be entitled to
the same compensation including solatium that he may be eligible under the Land
Acquisition Act. [303E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 848- 850 of 1977.
From the Judgment and Order dated 16-7-1976
of the Kerala High Court in W.A. Nos. 910, 194 and 253/75.
AND CIVIL APPEAL Nos. 666-669 of 1978.
From the Judgment and decree dated 8-6-1977
of the Kerala High Court in W.A. Nos. 364-365, 472 and 473 of 1975.
P. Govindan Nair and K. R. Nambiar for the
Appellants in CAs. 848/77 and 666-667/78 and for Respondents 2 to 4 in CA
849/77 and 2-3 in CA 850/77.
M. M. Abdul Khader and N. Sudhakaran for the
Appellant in CAs. 849-850/77 and Respondent 2 in CA 848/77 and RR1 in CA
666/78, 667/78 and RR 2 in CA 668-669/78.
T. S. Krishnamoorthy Iyer, T.P. Sundara Rajan
and P. K. Pillai for Respondent No. 1 in 848/77.
T. L. Vishwanath Iyer, and S. Balakrishnan for
the Respondent No. 1 in CAs. 668-669/78 and RR 2 in CAs. 666- 667/78.
The Judgment of the Court was delivered by
292 KRISHNA IYER, J. Law and development, as yet a Cinderella of our corpus
juris, is a burgeoning branch of creative jurisprudence which needs to be
nourished with judicious care, by courts in developing countries. The Town
Planning Act, a developmental legislation amended and updated by the Kerala
Legislature, was designed to draw up plans and to execute projects for the
improvement of the towns and cities of that over-crowded State with its
populous multitudes uncontrollably spiralling, defying social hygiene and
economic engineering. Although the Act is of 1932 and originally confined to
the Travancore portion of the Kerala State, it has received amendatory
attention and now applies to the whole of Kerala with beneficial impact upon
explosive cities like Cochin. This legislation, naturally, has made some
deviation from the Kerala Land Acquisition Act, 1961, but having received
insufficient attention from the draftsman on constitutional provisions, has
landed the Act in litigation through a challenge in the High Court where it met
with its judicial Waterloo when a Division Bench invalidated Section 31(1) and
34(2A) which were the strategic provisions whose exit from the statute would
virtually scotch the whole measure. The State of Kerala has come up in appeal,
although the immediate victim is the Cochin Town Planning Trust.
The schematic projection of the Town Planning
Act (the Act, for short) may be a good starting point for the discussion of the
sub missions made at the Bar. The Act, with a prophetic touch, envisions
explosive urban developments leading to terrific stresses and strains, human,
industrial and societal. Land is at the base of all development, and demand for
the limited space available in the cities may so defile and distort planned
progress as to give future shock unless scientific social engineering takes
hold of the situation. The State of its specialized agencies must take preemptive
action and regulate the process of growth. The Act fills this need and
contemplates the creation of a Town Planning Trust, preparation of town
planning schemes, acquisition of lands in this behalf, compensation for
betterment by citizens and other miscellaneous provisions, apart from creation
of development authorities. While this is the sweep of the statute, our concern
is limited to schemes sanctioned by Section 12, acquisition of lands for such
schemes under Section 32, compensation for such compulsory taking under Section
34 and the modifications in the manner of acquisition and the mode of
compensation wrought into the - Land Acquisition Act by the above provisions of
the Town Planning Act. It is indisputable that the compensation payable and
certain other matters connected therewith, differ as between the provisions in
this Act and the Land Acquisition Act. The latter is more beneficial 293 to the
owner and the challenge, naturally, has stemmed from this allegedly invidious
discrimination. In two separate cases, two judges upheld the challenge and, on
appeal, the High Court affirmed the holdings that the provisions of Sub-
section 34(1) and 34(2A) were unconstitutional, being violative of Article 14.
Hence these appeals.
We will now proceed to scan the substance of
the submissions and the reasoning in the High Court's judgment.
Counsel for the State, Shri P. Govindan Nair,
supported by counsel for the Trust, Shri Abdul Khader, have canvassed the
correctness of the reasons which have appealed to the High Court, and some
decisions of this Court have been brought to our notice in this connection. The
owners of the lands acquired have been represented before us by Sri T. C. Raghavan
who has, in his short submission, supported the judgment under appeal. One of
the appeals has become infructious, because the State, after the High Court
invalidated Section 34 of the Act, proceeded under the Land Acquisition Act,
acquired the land, paid compensation and took possession thereof, thus
completely satisfying the land owner. Shri T. S. Krishnamurthi Iyer, appearing
for the owner, pointed out this circumstance and so we dismissed that appeal
but mention it here because Shri T. C. Raghavan has relied on this fact in
support of one of his arguments, as we will presently disclose. Before entering
into the merits, we may recall the submissions of Shri T. L.
Viswanathan, a young lawyer from Kerala, who
made us feel that orality, marked by pointed brevity and suasive precision, is
more telling than advocacy with counter- productive prolixity. Although the
responsible scrutiny that a bench decision of the High Court deserves has been
bestowed, we are unable to support the judgment under appeal or the arguments
of counsel in support.
The controversy regarding the vires of Sec.
34 revolved round a few points. Before us, Art. 14 has loomed large and a
submission has been made that by use of the provisions for making schemes under
Sec. 8 or Sec. 10 the authority may indefinitely immobilize the owner's ability
to deal with his land since Sec. 15 clamps restrictions, and this is
We agree that it is a hardship for the owner
of the land if his ability to deal with his property is either restricted or
prevented by a notification, and nothing happens, thereafter, leaving him
guessing as to what the State may eventually do. Indeed, if such a state of
suspense continues for unlimited periods, it may be unreasonable restriction on
the right to property, although currently the right to property itself has been
taken away from Part III. That apart, we must see whether there is any
justifiable classification between common cases of compulsory acquisition under
the Land Acquisition Act and the special class of acquisitions covered by the
Town Planning Act which may furnish a differentia sufficient to repel the
attack of Article 14.
Section 15 of the Act forbids dealings by the
owner in many ways, once the publication of a notification is made. The
grievance particularised by Shri Raghavan is that after a draft scheme has been
prepared by the municipal council and published, it becomes operational only on
the sanction by Government but there is no time limit fixed in Sec. 12 within
which Government shall sanction. Supposing it takes several years for
Government to express its approval or disapproval, the owner may suffer.
We regard this grievance as mythical, not
real, for more than one reason. The scheme is for improvement of a town and,
therefore, has a sense of urgency implicit in it.
Government is aware of this import and it is
fanciful apprehension to imagine that lazy insouciance will make Government
slumber over the draft scheme for long years.
Expeditious dispatch is writ large on the
process and that is an in-built guideline in the statute. At the same time,
taking a pragmatic view, no precise time scale can be fixed in the Act because
of the myriad factors which are to be considered by Government before granting
sanction to a scheme in its original form or after modification. Section 12 and
the other provisions give us some idea of the difficulty of a rigid time-frame
being written into the statute especially when schemes may be small or big,
simple or complex, demanding enquiries or provoking discontent. The many
exercises, the differences of scale, the diverse consequences, the overall
implications of developmental schemes and projects and the plurality of
considerations, expert techniques and frequent consultations, hearings and
other factors, precedent to according sanction are such that the many-sided dimension
of the sanctioning process makes fixation of rigid time limits by the statute
an impractical prescription. As pointed out earlier, city improvement schemes
have facets which mark them out from other land acquisition proposals. To miss
the massive import and specialised nature of improvement schemes is to expose
one's innocence of the dynamics of urban development. Shri Raghavan fairly
pointed out that, in other stages, the Act provides for limitation in time (for
example, sec. 33 which fixes a period of three years between the date of
notification and the actual acquisition). Only in one minimal area where
time-limit may not be workable, it has not been specified. The statute has left
it to Government to deal expeditiously with the scheme and we see sufficient
guideline in the Act not to make the gap between the 295 draft scheme and
governmental sanction too procrastinatory to be arbitrary. We need hardly say,
that the court is not powerless to quash and grant relief where, arbitrary
protraction or mala fide inaction of authorities injures an owner.
An aside: We are surprised at the obsolescent
and obscurantist vocabulary surviving in the Town Planning Act because there
are many B feudal and incongruous expressions such as 'our Governments and
references to a Land Acquisition Act which has already been repealed by the
Kerala Land Acquisition Act, 1961. Modernisation is a process necessary even
for the statute book and yet it has not been done, despite opportunity for the
legislature, while amending later, to carry out such simple, verbal and yet
necessary changes. Be it remembered that the Town Planning Act did undergo an
extensive amendment as late as 1976 when, surely, some of the verbal
replacements could easily have been made. Medievalism lingering in legislations
is hardly a tribute to the awareness of our legislators.
Section 12 of the Act provides for publishing
the draft schemes so that objections or suggestions may be put forward by
affected persons. The scheme is then passed by the Municipal Council, of
course, after considering objections and suggestions. Thereupon, it is
submitted to the Government for sanction and the fact of such submission is
also published so that the public may still raise objections or make
suggestions to Govt. which will consider them, make further inquiries, if
necessary, and ultimately sanction the scheme with or without modifications or
may even refuse sanction or return the scheme to the Council for fresh
consideration. Once the scheme is sanctioned by the Government, it is again
published. Section 12(6) imparts finality to the scheme and this virtually
corresponds to the declaration under sec. 6 of the Land Acquisition Act.
Chapter III of the Act is comprehensive and
complex because the subject of scheme-making demands expert attention and
affects community interest. A Director of Town Planning is appointed who shall
be consulted by Municipal Councils in matters of town planning. Developmental
schemes are not sudden creations. On the other hand, the Municipal Council
first decides to prepare a scheme, adopts a draft scheme, if any, made by the
owners of the lands, prepares the necessary plan of the lands which is proposed
to be included in the scheme and notify its resolution for public information.
A copy of the plan is kept for the inspection of the public.
Since all improvement schemes are matters of
public concern, on the passing of a resolution and its notification under sec.
8, a time-bound obligation is cast on the Municipal Council by s. 9, which
reads thus :
296 "S. 9: Publication of draft scheme:
(1) If the resolution is to make a scheme,
municipal council shall, within twelve months from the date of the notification
under s.8 or within such further period not exceeding twelve months, as our
Government may allow, and after consulting, in the prescribed manner, the
owners of lands and buildings in the area affected, prepare and publish a draft
scheme." It is apparent that improvement schemes cannot hang on
indefinitely and an outside limit of 2 years is given for the preparation and
publication of draft schemes from the initial resolution to make or adopt the
scheme is passed by the Municipal Council. Government itself may step in and
direct the Municipal Council to prepare schemes and sec. 10 empowers it in this
behalf. Sec. 11 contains detailed provisions regarding the material to be
included in the draft scheme. These are preparatory exercises, and then comes
the sanction of the scheme by the Government under Sec. 12. We indicate the
elaborate character of the strategy, stages, contents and character of schemes
for improvement and the opportunities for objections and suggestions to the
public and the consultation with technical experts and Government, time and
again, only to emphasise the complex nature of modern urban development schemes
which makes it a different category altogether from the common run of 'public
purposes' for which compulsory acquisition is undertaken by the State.
Conceptwise and strategywise, development schemes stand on a separate footing
and classification of town planning schemes differently from the routine
projects demanding compulsory acquisition may certainly be justified as based
on a rational differentia which has a reasonable relation to the end in view
viz., improvement of towns and disciplining their development.
Once this basic factor is recognised, the
raison detre of a separate legislation for and separate treatment of town
planning as a special subject becomes clear. It was pointed out that under the
Kerala Land Acquisition Act, there is a time limit of 2 years written into
Section 6 by engrafting a proviso thereto through an amendment of 1968 Act (Act
29 of 1968). Section 6 deals with a declaration that land is required for a
public purpose and the relevant proviso thereto reads:
"S.6(i) Proviso :
Provided that no declaration in respect of
any particular land covered by a notification under sub- section (1) of 297
Sec. 3 shall be made after the expiry of two years from the date of publication
of such notification." An argument was put forward that under the Land
Acquisition Act there is thus a protection against unlimited uncertainty for
the owners once lands are frozen in the matter of dealing with them by an
initial notification. This protection against protraction and inaction on the
part of the State and immobilisation of ownership is absent in the Town
Planning Act. According to Mr. T. C. Raghavan, appearing for some respondents,
this makes for arbitrariness and discrimination invalidatory of the relevant
provisions of the Town Planning Act. In our view there is no substance in this
submission, having regard to the specialised nature of improvement schemes and
the democratic a participation in the process required in such cases. We repel
Much argument was addressed on the 'either
or' arbitrariness implicit in s. 33 of the Act. The precise contention is that
it is open to the Trust to acquire either under the Kerala Land Acquisition Act
or under Chapter VII of the Town Planning Act. In the latter event, no solatium
is payable while under the former statute it is a statutory obligation of the
acquiring Govt. Thus, if an Authority has an option to proceed under one
statute or the other and the consequences upon the owner are more onerous or
less, such a facultative provision bears the lethal vice of arbitrariness in
its bosom and is violative of Art. 14 and is therefore, void. Section 32 of the
Act is the foundation for this argument and reads thus:
32. Modification of Land Acquisition Act:
Immovable property required for the purpose
of town planning scheme shall be deemed to be land needed for a purpose within
the meaning of the Land Acquisition Act, XI of 1089, and may be acquired under
the said (Act) modified in the manner provided in this chapter.
What is spun out of the words used is that
for the purposes of town planning schemes an immovable property "may be
acquired under the said Act (The Land Acquisition Act) modified in the manner
provided in this Chapter". Of course, Chapter VII, particularly sub-sec.
(1) of s. 34 thereof, relates to compensation and does not provide for payment
of solatium. Moreover, it is mentioned that the provisions of ss. 14, 22 and 23
(both sides agree, this should be read as Sec. 25) of the Land Acquisition Act
shall have no application in the acquisition of property for the purpose of the
Town Planning Act.
298 We do not accept the argument that there
is a legal option for the authority to acquire either under the Land
Acquisition Act or under the Town Planning Act when land is needed for a
scheme. Theoretically, yes, but practically, no. Which sensible statutory
functionary, responsible to the Treasury and to the community, will resort to
the more expensive process under the Land Acquisition Act as against the
specially designed and less costly provision under s.
34? Fanciful possibilities, freak exercise
and speculative aberrations are not realistic enough for constitutional
invalidation on the score of actual alter. natives or alive options, one more
onerous than the other. In Magan lal's case, the Court pointed out :
"The statute itself is the two classes
of cases before us clearly lays down the purpose behind them, that is premises
belonging to the Corporation and the Government should be subject to speedy
procedure in the matter of evicting unauthorised persons occupying them.
This is a sufficient guidance for the
authorities on whom the power has been conferred. With such an indication
clearly given in the statutes one expects the officers concerned to abail
themselves of the procedures prescribed by the Acts and not resort to the
dilatory procedure of the ordinary Civil Court. Even normally one cannot
imagine an officer having the choice of two procedures, one which enables him
to get possession of the property quickly and the other which would be a
prolonged one, to resort to the latter.
Administrative officers, no less than the
courts, do not function in a vacuum. It would be extremely unreal to hold that
an administrative officer would in taking proceedings for eviction of
unauthorised occupants of Govt. property or Municipal property resort to the
procedure prescribed by the two Acts in one case and to the ordinary Civil
Court in the other. The provisions of these two Acts cannot be struck down on
the fanciful theory that power would be exercised in such an unrealistic
fashion. In considering whether the officers would be discriminating between
one set of persons and another, one has got to take into account normal human
behaviour and not behaviour which is abnormal. It is not every fancied
possibility of discrimination but the real risk of discrimination that we must
take into account. This is not one of those cases where discrimination is writ
large on the face of the statute. Discrimi- 299 nation may be possible but is
very improbable. And if there is discrimination in actual practice this Court
is not powerless. Furthermore, the fact that the Legislature considered that
the ordinary procedure is insufficient or ineffective in evicting unauthorized
occupants or Govt. and Corporation property and provided a special speedy
procedure there for is a clear guidance for the authorities charged with the
duty of evicting unauthorised occupants. We therefore, find ourselves unable to
agree with the majority in the Northern India Caterers' case." The same
reasoning applies to the present situation.
The Town Planning Act is a special statute
where lands have to be acquired on a large scale and as early and quickly as
possible so that schemes may be implemented with promptitude. What is more,
there is a specific and purposeful provision excluding some sections of the
Kerala Land Acquisition Act. In such circumstances, it is incredible that the
authority acting under the Act will sabotage Chapter VII, in particular s. 34,
by resorting to the Kerala Land Acquisition Act in derogation of the express
provision facilitating acquisition of lands on less onerous terms. He functions
under the Town Planning Act, needs Lands for the schemes under that Act, has
provisions for acquisition under that Act. Then would be, by reckless action,
travel beyond that Act and with a view to oblige the private owner betray the
public interest and resort to the power under the Land Acquisition Act,
disregarding the non obstante provision in Sec. of the Act? Presumption of
perversity cannot be the foundation of unconstitutionality.
Moreover, the expression, used in the context
of s. 32, clearly (does not bear the meaning attributed to it by the counsel
for the respondents. All that it means is that when immovable property is found
necessary for the purpose of a 'scheme' it may be acquired by the compulsory
process written into s. 32. It is, as if there were only one option, not two.
If the scheme is to be implemented, the mode of acquisition shall be under s.
32 and the manner of such acquisition is the same under the Land Acquisition
Act minus ss. 14, 22 and 25 thereof. A slight reflection makes it clear that
the mode prescribed is only one, and so the theory of alternatives one of which
being mere onerous than the other, and the consequent inference of
arbitrariness, cannot arise. We overrule that argument.
We must notice, before we part with this
point, the argument of Sri Raghavan for the respondents that the existence of
alternatives is not theoretical nor chimerical but real, and proof of the
pudding is in the eating. He pointed to one of the appeals in this batch where
the proceedings under sec. 34 of the Act were given up, the provision 300 of
the Land Acquisition Act used, and full compensation and solatium paid to the
owner. This instance gave flesh and blood to the submission about
discrimination. Shri Khader, for the trust countered this argument by-stating
that because the High Court struck clown the Act and the land was needed. the
only statute then available to the State was the Land Acquisition Act. So, the
authority was reluctantly constrained to notify and acquire under the Land
Acquisition Act. Had Sec. 34 of the Act been available, this step would not
have been taken and absent Sec. 34 the argument of alternatives has no basis.
We agree with this reasoning and repel the submission of arbitrary power to
pick and choose.
At worst, a swallow does not make a summer
but we must warn that prodigal state action to favour some owner when sec. 34
has been resuscitated will be betrayal of public interest and invalidated as
mala fide even at the instance of a concerned citizen. The legislature cannot
be stultified by the suspicious improvidence, or worse, of the Executive.
The more serious submission pressed tersely
but clearly, backed by a catena of cases, by Shri Viswanathan merits our
consideration. The argument is shortly this. As between two owners of property.
the presence of public purpose empowers the State to take the lands of either
or both. But the differential nature of the public purpose does not furnish a
rational ground to pay more compensation for one owner and less for another and
that impertinence vitiates the present measure. The purpose may be slum
clearance, flood control or housing for workers, but how does the diversity of
purposes warrant payment of differential scales or quantum of compensation
where no constitutional immunity as in Art. 31A, or applies? Public purpose
sanctions compulsory acquisition, not discriminatory compensation, whether you
take A's land for improvement scheme or irrigation scheme, how can you pay more
or less, guided by an irrelevance viz. the particular public purpose? The State
must act equally when it takes property unless there is an intelligent and intelligible
differentia between two categories of owners having a nexus with the object,
namely the scale of compensation. It is intellectual confusion of
constitutional principle to regard classification good for one purpose, as
obliteration of differences for unrelated aspects. This logic is neatly applied
in a series af cases of this Court.
It is trite that the test to rebuff Art. 14
turns of the differentia vis-a-vis the object of the classification.
In Vajarveu Mudaiar's case, the Court took
the view, (on this aspect the decision is not shown to have been overruled)
that where there is no rational relation in the 301 matter of quantum of
compensation between one public purpose and another you cannot differentiate
between owners. Whether you acquire for a hospital or university, for slum
clearance or housing scheme, compensation cannot vary in the rate or scale or
"Out of adjacent lands of the same
quality and value, one may be acquired for a housing scheme under the Amending
Act and the other for a hospital under the Principal Act, out of two adjacent
plots belonging to the same individual and of the same quality' and value, one
may be acquired under the Principal and the other under the Amending Act. From
whatever aspect the matter is looked at, the alleged differences have no
reasonable relation to the object sought to be achieved.
In Durganath Sharma's case, a special
legislation for acquisition of land for flood control came up for
constitutional examination. We confine ourselves to the differentiation in the
rate of compensation based on the accident of the nature of the purpose where
the Court struck a similar note. In the Nagpur Improvement Trust case and in
the Om Prakash case, this Court voided the legislation which provided differential
compensation based upon the purpose.
In the latter case the Court observed :
"There can be no dispute that the Govt.
can acquire land for a public purpose including that of the Mahapalika or other
local body, either under the unmodified Land Acquisition Act, 1894, or under
that Act as modified by the Adhiniyam. If it chooses the first course, then the
land-owners concerned will be entitled to better compensation including 15%
solatium, the potential value of the land etc. nor will there be any impediment
or hurdle such as that enacted by s. 372(a) of the Adhiniyam in the way of such
land owners, dissatisfied by the Collector's award, to approach the Court under
s. 18 of that Act.
....It is not necessary to dilate further on
this point at this matter stands concluded by this Court's decision in Nagpur
Improvement Trust's case by the ratio of which we bound. It will be sufficient
to close the discussion by extracting here what Sikri C.J., speaking for the
Court in Nagpur Improvement Trust's case said:
"Can the Legislature say that for a
hospital land will be acquired at 50% of the market value, for a school at 60 %
of the value and for a Govt. building at 70 % of the 302 market value? All
three objects are public purposes and as far as the owner is concerned it does
not matter to him whether it is one public purpose or the other. Art.
14 confers an individual right and in order
to justify a classification there should be something which justifies a
different treatment to this individual right. It seems to us that ordinarily a
classification based on the public purpose is not permissible under Art. 14 for
the purpose of determining compensation.
The position is different when the owner of
the land himself is the recipient of benefits from an improvement scheme, and
the benefit to him is taken into consideration in fixing compensation. Can
classifications be made on the basis of authority acquiring the land? In other
words can different principles of compensation be laid if the land is acquired
for or by an Improvement Trust or Municipal Corporation or the Government? It
seems to us that the answer is in the negative because as far as the owner is
concerned it does not matter to him whether the land is acquired by one
authority or the other.
It is equally immaterial whether it is one
Acquisition Act or another Acquisition Act under which the land is acquired. If
the existence of two Acts could enable the State to give one owner different
treatment from another equally situated the owner who is discriminated against,
can claim the protection of Article 14." The principle that may be
distilled from these rulings and the basics of 'equality' jurisprudence is that
classification is not permissible for compensation purposes so long as the
differentia relied on has no rational relation to the object in view viz.
reduction in recompense.
Is it rational to pay different scales of
compensation, as pointed out by Sikri, C.J. in the Nagpur Improvement Trust
case, depending on whether you acquire for housing or hospital, irrigation
scheme or town improvement, school building or police-station? The amount of
compensation payable has no bearing on this distinction, although it is
conceivable that classification for purposes of compensation may exist and in
such cases the statute may be good. We are unable to discern any valid
discremen in the Town Planning Act vis-a-vis the Land Acquisition Act
warranting a classification in the matter of denial of solatium.
We uphold the Act in other respects but not
when it deals invidiously between two owners based on an irrelevant criterion
viz. the acquisition being for an improvement scheme. We are not to be 303
understood to mean that the rate of compensation may not vary or must be
uniform in all cases. We need not investigate this question further as it does
not arise here although we are clear in our mind that under given circumstances
differentiation even in the scale of compensation may comfortably comport with
Art. 14. No such circumstances are present here nor pressed. Indeed, the State,
realising the force of this facet of discrimination offered, expilatory
fashion, both before the High Court and before us, to pay 15% solatium to
obliterate the hostile distinction.
The core question now arises. What is the
effect even if we read a discriminatory design in Sec. 34? Is plastic surgery
permissible or demolition of the section inevitable? Assuming that there is an
untenable discrimination in the matter of compensation does the whole of s. 34
have to be liquidated or severable portions voided? In our opinion, scuttling
the section, the course the High Court has chosen, should be the last step. The
Court uses its writ power with a constructive design, an affirmative slant and
a sustaining bent. Even when by compulsions of inseverability, a destructive
stroke becomes necessary the court minimises the injury by an intelligent
containment. Law keeps alive and "operation pull down" is de mode.
Viewed from this perspective, so far as we are able to see, the only
discriminatory factor as between s. 34 of the Act and s. 25 of the Land
Acquisition Act vis-a-vis quantification of compensation is the non-payment of
solatium in the former case because of the provision in s. 34(1) that s. 25 of
the Land Acquisition Act shall have no application. Thus, to achieve the virtue
of equality and to eliminate the vice of inequality what is needed is the
obliteration of s. 25 of the Land Acquisition Act from s. 34(1) of the Town
Planning Act. The whole of s. 34(1) does not have to be struck down.
Once we excise the discriminatory and,
therefore, void part in Sec. 34(1) of the Act, equality is restored. The owner
will then be entitled to the same compensation, including solatium, that he may
be eligible for under the Land Acquisition Act. What is rendered void by Art.
13 is only to the extent of the contravention of Art. 14. The lancet of the
Court may remove the offending words and restore to constitutional health the
rest of the provision.
We hold that the exclusion of Sec. 25 of the
Land Acquisition Act from sec. 34 of the Act is unconstitutional but it is
severable and we sever it. The necessary consequence is that s. 34(1) will be
read omitting the words 'and s. 25' . What follows then? Section 32 obligates
the state to act under the Land Acquisition Act but we have struck down that
part which excludes sec. 25 of the Land Acquisition Act 304 and so, the
'modification' no longer covers s. 25. It continues to apply to the acquisition
of property under the Town Planning Act. Section 34(2) provides for compensation
exactly like s. 25(1) of the Land Acquisition Act and, in the light of what we
have just decided, s. 25(2) will also apply and "in addition to the market
value of the land as above provided, the court shall in every case award a sum
of fifteen per cen tum on such market value in consideration of the compulsory
nature of the acquisition." The upshot of this litigation thus is that the
appeal must be allowed except to the extent that solatium shall be payable as
under the Land Acquisition Act. Since the State has always been willing to pay
that component and has repeated that offer even before us right from the
beginning, we direct the parties to bear their respective costs.
P.B.R. Appeal allowed.