State of
Tamil Nadu & Ors Vs. L.Krishn N &
Ors [1995] INSC 605 (1
November 1995)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Ramaswamy, K. B.P. Jeevan Reddy.J.
HANSARIA
B.L. (J)
CITATION:
1996 AIR 497 1996 SCC (1) 250 JT 1995 (8) 1 1995 SCALE (6)221
ACT:
HEAD NOTE:
J U D
G M E N T
CIVIL
APPEAL NOS.1865-66/1868-70 OF 1992 These appeals are preferred by the State of
Tamil Nadu, Tamil Nadu Housing Board and others against the judgment of the
Madras High Court allowing a batch of writ petitions and quashing three
notifications issued under Section 4(1) of the Land Acquisition Act,1894. The
three notifications concerned herein are the notifications dated May 8, 1975, August 29,1975
and February 19,1975. The writ petitions have been
allowed relying mainly upon the earlier decision of the Court in State of Tamil Nadu V. A.Mohammed Yousef and Ors. (1992 (2) M.L.J.149) [which
has since been affirmed by this Court in State of Tamil Nadu & Anr.v.A.Mohammed
Yousef & Ors. (1991 (4) S.C.C. 224)] and the decision of this Court in Munshi
Singh v.Union of India (1973 (1) S.C.R.973).
The
first and the main ground assigned by the High Court for quashing the said
notifications is that the public purpose stated therein is vague and that on
the date of issuance of the said notifications, there was not existing any
final and effective scheme prepared under the provisions of the Tamil Nadu
State Housing Board Act. Two other grounds assigned by the High Court in
support of its decision are (i) that there was an undue delay in passing the
awards after the issuance of the declarations under Section 6 and (ii)
non-compliance with clauses (b) and (c) of Rule 3 of the Land Acquisition Rules
framed by the State Government in the course of enquiry under Section 5-A.
The
public purpose stated in the three notification is "for the implementation
of housing schemes to meet the demands made by various sectors of the
population under `Kalaignar Karunanidhi Nagar Further Extension Scheme'",
"for the creation of a new neighbourhood known as Kalaignar Karunanidhi Nagar
Part II Schemes" and "for increasing housing accommodation for the
development of South Madras neighbourhood " respectively. Enquiries under
Section 5-A were held and on the basis of reports submitted in that behalf,
declarations under Section 6 were made sometime in the year 1978. Awards were
passed in the year 1983. The writ petitions from which these appeals arise were
filed in the year 1982 and in 1983 - one of them even later.
Sri Harish
Salve, learned counsel for the appellants, disputed the correctness of the
judgment under appeal on the following grounds: the impugned judgment of the
High Court is contrary to more than one Constitution Bench judgment of this
Court. The principle of the decision in Mohammed Yousef or, for that matter, of
Munshi Singh has no application to the facts herein; it is not necessary that
there should be a final and effective scheme prepared under the Tamil Nadu
State Housing Board Act [Housing Board Act] before lands are acquired for the
purpose of the Housing Board; lands are acquired by the Government even where
there is no final and effective housing scheme on the date of the notification;
in these cases, the schemes were indeed initiated prior to the issuance of
Section 4 notifications and were finalised after the issuance of the said
notification. The public purpose started in the notifications is not vague.
Learned counsel further submitted that the respondents-writ petitioners cannot
be allowed to raise the said grounds inasmuch as they neither filed objections
in the enquiry held under Section 5-A, nor did they raise these grounds at any
time before the issuance of declaration under Section 6.
They
did not make this grievance even after the issuance of Section 6 declaration
for a number of years. Only when the awards were about to be passed (and in
some cases after the passing of the awards) were these writ petitions filed. On
the ground of laches and acquiscence along, the writ petitions ought to have
been dismissed. So far as the post- declaration delay assigned by the High
Court as one of the grounds for its decision is concerned, the learned counsel
submitted that the said delay, if any, is not fatal in view of the counter-vailing/beneficial
provision contained in Section 48-A, added by the Madras Legislature in the
Land Acquistion Act. Laches are pleaded with respect to this ground as well.
With respect to the other ground given by the High Court, viz., non-compliance
with clauses (b) and (c) of Rule 3 of the Tamil Nadu Land Acquisition Rules,
Sri Salve submitted that the High Court ought not to have permitted the writ
petitioners to raise this ground since they did not even file objections in the
enquiry under Section 5-A nor did they complain of this aspect at the proper
time. Only when the awards were about to be passed or after the passing of the
awards, as the case may be, the petitioners have come forwards with the present
writ petitions.
Sri Ashok
Sen, learned counsel for the respondents-writ petitioners, supported the
reasoning and conclusions arrived at by the High Court. He submitted that
unless a scheme is prepared under and in accordance with the Housing Board Act,
no notification under Section 4 of the Land Acquisition Act can be issued.
Unless the public purpose is spelt out clearly, the persons interested would be
handicapped in making an effective representation in the enquiry under Section
5-A. Unless they know for what particular purpose their land is sought to be
acquired, giving them an opportunity to file objections is an empty formality.
A final effective housing scheme prepared and published under the Housing Board
Act, containing as it does the full particulars of development, alone would
satisfy the requirement of particularisation of the public purpose.
Where,
therefore, the land is acquired for the purpose of the Housing Board, a final
scheme prepared under the Housing Board Act is a condition precedent. It is for
this reason that this Court has held in Mohammed Yousef that such a scheme is a
precondition for a notification under Section 4 of the Land Acquisition Act.
Sri
Siva Subramaniam, learned counsel for some of the respondents-writ petitioners,
supported the contentions of Sri Sen. He submitted further that even apart from
the provisions of the Housing Board Act, there ought to be a scheme before the
issuance of Section 4 notification not only to satisfy the requirement of
public purpose but also to afford the persons interested a reasonable and
effective opportunity to object.
The
first question that arises in these appeals is whether a final and effective
scheme prepared and published under the provisions of the Housing Board Act is
a pre- condition to the issuance of notification under Section 4.
This
question has to be answered with reference to the provisions of the Land
Acquisition Act as well as the Housing Board Act.
None
of the three notifications, it may be noted, state that the land is being
acquired for the purpose of the Tamil Nadu Housing Board. The fact, however,
remains - and it is admitted before us - that the said lands were being
acquired for the purpose of the Housing Board only.
Section
4 of the Land Acquisition Act does not state expressly or by necessary
intendment that before a notification is issued/published thereunder proposing
to acquire land for the purpose of a body like the Tamil Nadu Housing Board, a
duly published final scheme prepared in accordance with the relevant Act should
be in force. The respondents-writ petitioners, however, seek to deduce such a
requirement from the provisions of the Tamil Nadu Housing Board Act.
The
Housing Board Act was enacted by the Tamil Nadu legislature "to provide
for the execution of housing and improvement schemes, for the establishment of
a State Housing Board and for certain other matters". Section 2 defines
certain expressions occurring in the Act. The expression "housing or
improvement scheme" is defined in clause (9) to mean a scheme framed under
the Act and includes any one of the types of scheme referred to in Section 40.
Chapter-II (Sections 3 to 11) provides for the constitution of the Board,
appointment of its members and their disqualifications. Chapter-III (Sections
12 to 15) provides for transfer of the assets and liabilities of the City
Improvement Trust to the Housing Board. Section 12 dissolves the City
Improvement Trust with effect from the date of the said enactment and vests all
assets and liabilities thereof in the Board. Chapter-IV (Section 16 to 22)
deals with officers and members of the staff of the Board. Chapter-V (Sections
23 to 27) deals with the conduct of business of the Board and its committees
while Chapter-VI (Sections 28 to 34) deals with powers of the Board and
Chairman to incur expenditure on scheme and enter into contracts. Chapter-VII
(Sections 35 to 69-A), which provides for housing or improvement schemes, is
relevant for our purpose.
Sub-section
(1) of Section 35 provides that "subject to the provisions of this Act,
the Board may, from time to time, incur expenditure and undertake works for the
framing and execution of such housing or improvement schemes as it may consider
necessary." Sub-section (2) is significant for our purposes. It
says,"(T) he Government may, on such terms and conditions as they may
think fit to impose, transfer to the Board the execution of any housing or
improvement scheme not provided for by this Act, and the Board shall thereupon
undertake the execution of such scheme as if it had been provided for by this
Act." Sub-section (3) empowers the Board to take over for execution any housing
or improvement scheme undertaken by a local authority on such terms and
conditions as may be agreed upon. The Board shall execute such schemes as if it
is provided by the Housing Board Act.
Section
36 empowers the Government to transfer to the Housing Board "any land in
such area belonging to or vested in them or acquired under the provisions of
the Tamil Nadu Slum Improvement (Acquisition of Land) Act, 1954", on such
terms as they may think fit to impose, for the purpose of clearance or
improvement of any slum area. The Government is also empowered to direct the
Board to undertake the clearance or improvement of that area and execute such
housing or improvement scheme under the Act as the Government may specify.
Thereupon, the Board is obligated to undertake the said scheme for execution as
if it had been provided for by the Housing Board Act. We shall refer to the
significance of these provisions after we refer to some more provisions in this
chapter.
Section
37 says that "a housing or improvement scheme may be framed by the Board
on its own motion or at the instance of the Government or a local
authority". Section 38 empowers the Board either to execute or refuse to
execute or refuse to execute any scheme sought to be entrusted to it by any
local authority. Section 39 specifies the matters which must be provided for in
a housing or improvement scheme. In short, all the particulars of the proposed
scheme have to be stated therein. Section 40 specifies the several types of
housing or improvement schemes. There are as many as eight types. Sections 41
to 48 deal separately with each type of scheme. We need not refer to the
contents of these sections for the purpose of these appeals. Sections 49 to 56
deal with the procedure to be followed by the Board in preparing a housing or
improvement scheme. Section 49(1) says that where any housing or improvement
scheme has been framed, the Board shall prepare a notice to that effect and
specify (a) the boundaries of the area comprising the scheme and (b) the place
or place at which particulars of the scheme, a map of the area and details of
the land which it is proposed to acquire may be seen at reasonable hours.
Sub-section (2) provides that the notice contemplated by sub-section (1) shall
be published in the official gazette and two leading daily newspapers. A copy
of the notice has also got to be sent to the local authority concerned.
Sub-section (3) empowers the Chairman to deliver copies of all documents
referred to in the notice to any applicant on payment of the appropriate fee. Section
50 days that the local authority to whom the notice under Section 49(2) (b) is
sent shall forward any representation received by it to the Board within sixty
days of the said notice. Section 51 deals with the notice regarding proposal to
recover betterment fee, which need not be noticed by us. Section 52 requires a
local authority to furnish, on a request being made by the Chairman of the
Board, a copy of, or an extract from, the assessment list of the local
authority. Section 53 provides that after considering the objections and
representations, if any, received pursuant to the notice published under
Section 49(2), 50 and 51(4) and after hearing such objectors, as may desire to
be heard, "the Board may either abandon or modify or sanction the scheme,
or apply to the Government for sanction with such modifications, if any, as the
Board may consider necessary if the cost of the scheme exceeds ten lakhs of
rupees". Sub-section (2) then says that the Government sanction the scheme
so forwarded either with or without modification or may refuse to sanction or
may return the same to the Board for reconsideration. Sub- section (3) of
Section 49. Section 54(1) provides for publication of sanctioned housing
schemes. Sub-section (2) says that the publication of the notification or
notice under sub-section (1) in respect of any scheme has been duly framed and
sanctioned. Sub-section (3) provides for an appeal against such scheme to the
Government by the person aggrieved therewith to be preferred within thirty days
of such publications Sub-section (4) says that the scheme notified under
Section 54(1) shall come into force and shall have effect (a) where no appeal
is preferred under sub- section (3) on and from the expiry of the thirty days
referred to in that sub-section (3) on and from the expiry of the thirty days
referred to in that sub section and (b) where such appeal is preferred on and
from the date of the decision of the Government on such appeal. Section 55 says
that as soon as may be after a hosing or improvement scheme has come into force
as provided in Section 54, the Board shall proceed to execute the same. Section
56 provides for alteration or cancellation of any scheme, even after it has
come into force as provided in Section 54 but before it has been carried into
execution. Clause (b) of Section 56 (which has been omitted by the Amendment
Act 5 of 1992) provided that if any alteration in the scheme to be effected
under Section 56 involves acquisition of any land, the procedure prescribed in the
aforesaid sections in this "Chapter shall be followed as if the alteration
were a separate scheme. Section 57 provides for transfer of any building, land
or street situated within the limits of a local authority and vesting in it to
the Board for execution of the Scheme. Section 58 provides for a similar
transfer of a private street or square and the procedure to be followed in that
behalf. The remaining sections in this Chapter deal with the powers of the
Board in the matter of executing the scheme prepared under the chapter.
Chapter-VIII
provides for acquisition and disposal of lands required by the Board. Section
70 (which has since been substituted by Amendment Act 5 of 1992] read as
follows before substitution: "70. Any land or any interest therein
required by the Board for any of the purposes of this Act may be acquired under
the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894)."
It is not necessary to refer to the remainign provisions of the Act.
Coming
back to the provisions of Chapter-VII, it may be noticed that the said chapter
provides for the types of the housing or improvement schemes and the procedure
following which housing or improvement schemes have to be finalised and
executed. But Section 35 and 36 make it clear that the duty of the Housing
Board does not begin and end with executing the housing Board is under an
obligation to carry out certain other schemes also as are provided in these
sections. Sub-section (2) of Section 35 states that the Government may, on such
terms and conditions as they may think fit to impose, transfer to the Board the
execution of any housing or improvement scheme not provided for by the Act. On
such transfer, the Board is under an obligation to undertake the execution of
such scheme as if such scheme has been provided for by the Housing Board Act.
Sub-section (3) of section 35 similarly provides that the Board may also
undertake to execute any housing or improvement scheme undertaken by a local
authority on terms and condition to be agreed upon between it and such local
authority. If the Board agrees to execute the said scheme of the Local
authority, it shall execute that scheme as if it has been provided for by the
Housing Board Act. Section 36 then provides that if the Government thinks it expedient
or necessary for the purpose of clearance or improvement of any slum, it can
transfer any land in such are belonging to it or vested in it or acquired under
the provisions of the Tamil Nadu Slum Improvement (Acquisition of Land) Act,
1954 to the Board on such terms and conditions as the Government may think fit
to impose and direct the Board to undertake the clearance or improvement of
that area and to frame and execute such housing or improvement scheme under
this Act as the 36 further says that on such transfer and direction by the
Government the Board shall execute the said scheme as if it had been provide
for by this Act.
These
provisions make it abundantly clear that the duty of the Housing Board is not
merely the execution of the housing or improvement schemes prepared and
published by it under the Act but extends to executing other schemes as well as
are made over to it or agreed to be undertaken by it. Now when Section 35(2)
speaks of transfer to the Board the execution of any housing or improvement
scheme not provided for by this Act, it certainly cannot mean a scheme prepared
in accordance with the provisions of the Housing Board Act.
Moreover,
while transferring the scheme to the Board, the Government is empowered to
impose such conditions as they may think fit to impose. Such terms and
conditions are not specified in the Act but lie within the discretion of the
Government. Similarly, when sub-section (3) of Section 35 speaks of a scheme
undertaken by a local authority to be made over to the Housing Board for
execution, it cannot again mean a Housing or improvement scheme not prepared in
accordance with the provisions of the Housing Board Act.
Here
again, it taking over the scheme by the Housing Board is subject to such terms
and conditions as may be agreed upon by both. Section 36 indeed discloses that
what is entrusted to the Housing Board is the job of clearance or improvement
of any sum area. The Government while directing the Board to undertake the
clearance or improvement of a particular area can also direct the Board to
frame and execute "such housing or improvement scheme under this Act as
the Government may specify " and the Board is obliged to execute such
scheme as if such scheme is prepared by the Act.
In
such circumstances, it would not be right to contend that unless a final and
effective scheme prepared in accordance with the provisions of Chapter VII of
the Housing Board Act is in existence, the Government cannot issue a
notification under Section 4 of the Land Acquisition Act for acquiring the land
required for execution of the schemes by the Housing Board. To repeat, the
Housing Board is obliged to execute not only the housing or improvement schemes
prepared under the said chapter but also certain other schemes referred to in
Sections 35 and 36. For example, the Government may conceive of a particular
scheme and ask the Housing Board to execute on such terms and conditions as the
Government may specify. In such a situation, there is no question of preparing
a housing or improvement scheme by the Housing Board in accordance with the
provisions of the Housing Board over again. So far as the scheme framed by the
Government is concerned, there is no enactment governing it.
it
can, therefore, be a scheme as ordinarily understood.
Similar
would be the case where the scheme undertaken by a local authority is made over
to the Housing Board by mutual agreement.
In
this connection, it is significant to notice that the Housing Board Act speaks
of the acquisition of land both as a part of a housing or improvement scheme
framed by it under Chapter-VII and also independent of such a scheme. We may
elaborate. Clause (a) of Section 39 (unamended) described one of the
particulars to be stated in the draft scheme. Clause (a) of Section 39 read as
follows:
"39.
Notwithstanding anything contained in any other law for the time being in
force, a housing or improvement scheme may provide for all or any of the
following matters, namely :- (a) the acquisition by purchase, exchange, or
otherwise of any property necessary for or affected by the execution of the
scheme." (Emphasis added) Similarly, Section 49(1) b [unamended], which
provides for publication of a final scheme, read:
"49(1).
When any housing or improvement scheme has been framed, the Board shall prepare
a notice to that effect and specify-- (a) the boundaries of the area comprised
in the scheme; and (b) the place or places at which particulars of the scheme,
a map of the area, and details of the land which it is proposed to acquire and of
the land in regard to which it is proposed to recover a betterment fee, may be
seen at reasonable hours." (Emphasis added) Reference may also be made in
this connection to clause (b) of the proviso to Section 56. Section 56. as
already noticed, provides for alteration or cancellation of a housing scheme
even after it is sanctioned by the Board or the Government but before it is
carried into execution. This power is, however, conditioned by matters provided
in the proviso. Proviso (b), before it was deleted by the aforesaid Amendment
Act, read thus:
"Provided
that-- (b) if any alteration involves the acquisition, otherwise than by
agreement, of any land not previously proposed to be acquired in the original
scheme, the procedure prescribed in the foregoing sections of the Chapter
shall, so far as it may be applicable, be followed as if the alteration were a
separate scheme." (Exphasis added) These are the provisions which speak of
acquisition of land as a part and parcel of a housing or improvement scheme framed
under Chapter-VII. We may now refer to the provision which speaks of
acquisition of land independent of a scheme framed under Chapter-VII.
Chapter-VIII
of the Act deals with acquisition and disposal of land. Section 70, before it
was substituted by the Amendment Act 5 of 1992, read thus:
"70.
Any land or any interest therein required by the Board for any of the purpose
of this Act may be acquired under the provisions of the Land Acquisition Act,
1894 (Central Act 1 of 1894)." It is significant to notice the language of
this section. This section enables the Government to acquire any land required
by the Board "for any of the purpose of this Act"- and purposes of
the Act are not confined to execution of the schemes framed by the Board under
Section 37 to 56 (in Chapter-VII) but extend to the execution of the schemes
transferred to it, or agreed to be undertaken by the Board, which schemes have
to be executed by the Board under the Act. It is open to the Government, for
example, to acquire a land and transfer it to the Housing Board for executing
the scheme devised by the Government and as directed by it.
Similarly,
any land required for executing a scheme devised by a local authority and the
execution of which has been undertaken by the Board is also required for the
purposes of the Act and can be acquired. In other words, Section 70 is an
affirmation, a recognition, of the power of the Government to acquire any land
required by the Housing Board for any of the purposes of the Act. It takes in
acquisition of land required for the execution of a housing or improvement
scheme devised by the Housing or improvement scheme devised by the Housing
Board under Sections 37 to 56 of the Act as also acquisition of land for other
purposes of the Act. As a matter of fact, we are not sure whether it would be
right to curtail or restrict the plenary power under Section 4 with reference
to the provisions of the Housing Board Act merely because the land to be
acquired is to be made over to Housing Board for the purpose of the Act.
As
mentioned hereinabove, the notifications themselves do not say that the land is
being acquired for the purpose of a housing or improvement scheme framed by the
Housing Board under the profusions of the Act, though it is true, it was
undoubtedly meant for the Housing Board. Once it is held that the Housing Board
can execute schemes other than those framed by it under Sections 37 to 56, as
explained above, there appears to be no warrant for qualifying the plenary
power under Section 4 of the Land Acquisition Act with reference to the said
provisions of the Housing Board Act.
As we
shall point out, earlier decisions of this Court have taken precisely this
view. But before we refer to them, it would be appropriate to deal with the
decision of a two- Judge Bench of this Court in State of Tamil Nadu & Anr. v.
A.Mohammed Yousef and Ors. (1991 (4) S.C.C.224), affirming, on the decision of
the Madras High Court, upon which strong reliance is placed by the respondents.
In this decision, it has been held that a proceeding under Land Acquisition Act
read with Section 70 of the Housing Board Act can be commenced only after the
framing of the scheme for which the land is required, but not before.
We may
mention, at the outset, that these appeals have been referred to a three-Judge
Bench by a Bench of two learned Judges because they doubted the correctness of
the decision in Mohammed Yousef, vide Order dated February 16, 1993.
The
facts in Mohammed Yousef are these: the notification under Section 4 of the
Land Acquisition Act was issued stating the public purpose as construction of
houses by the Tamil Nadu Housing Board. Admittedly not even a draft scheme was
framed by the Housing Board by the date of the said notification. On the
contrary, the contention of the State was that only after the acquisition
proceedings are completed and possession of the land taken, would they frame a
scheme. Alternately, it was contended by the State that framing of a scheme is
not a Pre-condition for issuance of a valid notification under Section 4 of the
Land Acquisition Act proposing to acquire the land for construction of houses
by the Housing Board. The High Court had struck down the notification on the
ground that the public purpose mentioned therein was too vague in the absence
of details relating to the scheme for which the acquisition was sought to be
made.
The
High Court opined that in the absence of such a scheme with necessary
particulars the land-owners cannot effectively avail of the opportunity given
by Section 5-A.
In
this Court, however, the main contention of the respondents-land-owners was
that the framing of a scheme by the Housing Board under the provisions of the
Housing Board Act is a pre-condition to a valid notification under Section 4
where the land is proposed to be acquired for the purpose of the Housing Board.
Inview of the said contention, this Court examined the scheme of the Act and
held that inasmuch as acquisition of the land is a part and parcel of the
execution of a scheme framed by the Board under the Act, the acquisition must
follow the scheme and cannot precede it.
The
Bench further observed that unless such a scheme with requisite particulars is
duly published, it may not be possible for the land-owners to object to the
proposed acquisition on the ground that the land is not suitable for the scheme
at all and/or that it does not serve the stated public purpose. The Bench
observed that the power of the Board to frame a scheme is regulated by the
provisions of the Act which, inter alia, provide a full opportunity to the
affected persons to object to the scheme. Even after the final publication of
the scheme and after its coming into force, it was pointed out, the scheme can
yet be altered or cancelled as provided under Section 56 of the Act. For all
these reasons, the Bench held that "a proceeding under Land Acquisition
Act read with Section 70 of the Madras Housing Board Act can be commenced only
after framing the scheme for which the land is required".
Unfortunately,
the provisions in sub-sections (2) and (3) of Section 35 and Section 36 were
not brought to the notice of the Bench nor were the earlier Constitution Bench
decisions of this Court brought to its notice, to which decisions we may now
turn. But one more relevant aspect before we refer to them.
After,
and in the light of, the impugned judgment, the Tamil Nadu Legislature has
amended the Housing Board Act with retrospective effect with a view to remove
the basis of the said judgment and providing expressly that existence of a
scheme framed by the Housing Board is not a pre-condition for acquiring land
for the purpose of the Board. The validity of the said Amendment Act has also
been questioned in the connected matters but the necessity to go into that
question will arise only if we agree with the reasoning and conclusions in the
decision under appeal. Indeed, Sri Salve's argument was that the decision of
the High Court is unsustainable even without reference to the said Amendment
Act and it is on that basis that he made his submissions.
In Arnold Rodricks & Anr. v. State of Maharashtra & Ors. (1966 (3) S.C.R.885),
the Constitution Bench dealt with the question whether the statement in the
notification under Section 4 that the land was required for "development
and utilisation of the said land as an industrial and residential areas"
cannot be said to be a public purpose within the meaning of Section 4 of the
Land Acquisition Act.
The
Court held, relying upon the decisions of this Court in Babu Barkya Thakur v.
State of Bombay (1961 (1) S.C.R.128 at 137) and Pandit Jhandu Lal V. The State
of Punjab (1961 (2) S.C.R.459) - as well as the statement in the counter-
affidavit filed on behalf of the State Government- that the purpose stated in
the notification is indeed a public purpose. The Constitution Bench pointed out
that in Babu Barkya Thakur, this Court had relied upon the decision in State of
Bombay v. Bhanji Munji & Anr. (1955 (1) S.C.R.777) to the effect that
"providing housing accommodation to the homeless is a public purpose (and
that) where a larger section of the community is concerned, its welfare is a
matter of public concern". The counter-affidavit filed on behalf of the
Government explained that the pressure of housing in Bombay is acute and that there was any
amount of need for fresh housing. The Court (majority) observed, "in our
view, the welfare of a large proportion of persons living in Bombay is a matter of Public concern and
the notifications served to enhance the welfare of this section of the
community and this is public purpose".
Another
contention urged for the petitioners was that the Government had not prepared
any scheme before issuing the notification under Section 4. This argument was
also negatived in the following words:
"This
is true that the Government has not until now prepared any scheme for the utilisation
of the developed sites.
But
the notification itself shows that the sites would be used as residential and
industrial sites. There is no law that requires a scheme to be prepared before
issuing a notification under s.4 or s.6 of the Act. We have, however, no doubt
that the Government will, before disposing of the sites, have a scheme for
their disposal." We have held hereinbefore that merely because the Housing
Board Act contemplates acquisition of land as part of a housing or improvement
scheme, it does not follow that no land needed for the purpose of the Housing
Board Act can be acquired until and unless a scheme is prepared and finalised
by the Board and becomes effective under the provisions contained in Chapter-VII.
In Aflatoon
& Ors. v.Lt. Governor of Delhi & Ors. (1975 (1) S.C.R.802), another
Constitution dealt with a similar contention, viz., that before publishing the
notification under Section 4, the Government had not declared any area in Delhi
as a development area under Section 12(1) of the Delhi Development Act nor was
there a Master Plan drawn up in accordance with Section 7 of that Act. The
notification under Section 4 was attacked on that basis. It was argued that
under Section 12(3) of the Delhi Development Act, no development of land can be
undertaken or carried out except as provided in that sub-section. This argument
was negatived by the Constitution Bench holding that :
"The
planned development of Delhi had been decided upon by the Government before
1959, viz., even before the Delhi Development Act came into force. It is true
that there could be no planned development of Delhi except in accordance with
the provisions of Delhi Development Act after that Act came into force, but
there was no inhibition in acquiring land for planned development of Delhi
under the Act before the Master Plan was ready (see the decision in Patna
Improvement Trust V.Smt.Lakshmi Devi and Ors. (1963 Suppl. (2) S.C.R.812)). In
other words, the fact that actual development is permissible in an area other
than a development area with the approval or sanction of the local authority
did not preclude the Central Government from acquiring the land for planned
development under the Act. Section 12 is concerned only with the planned
development. It has nothing to do with acquisition of property:
acquisition
generally precedes development. For planned development in an area other than a
development area it is only necessary to obtain the sanction or approval of the
local authority as provided in s.12(3). The Central Government could acquire
any property under the Act and develop it after obtaining the approval of the
local authority." It is significant to notice that Section 12 of the Delhi
Development Act, 1957 provided for declaration of any area as development area
by the Central Government and it further provided that except as otherwise
provided by the said Act, the Delhi Development Authority shall not undertake
or carry out any development of land in any area which is not a development
area. Sub-section (3) of Section 12, however, provided that after the
commencement of the said Act, no development of land shall be undertaken or
carried out in any area by anyone unless (i) where that area is a development area,permission
for such development has been obtained in writing from the Authority in
accordance with the provisions of the Act and (ii) where the area is an area
other than a development area, approval of the local authority or other
concerned authority is obtained accordance with the provisions of the Act and
(ii) where the area is an area other than a development area, approval of the
local authority or other concerned authority is obtained according to law.
Section 15 of the said Act provided for acquisition of any land required for
the purpose of development under the Act.
In our
opinion, the observations quoted and emphasised hereinabove, and the board
similarly between the provisions of the Delhi Act and the Tamil Nadu Housing
Board Act, establish that the acquisition of the land is not dependent upon the
preparation and approval of a scheme under Sections 37 to 56 and that the
Government's power of acquisition extends to other purposes of the Board and
the Housing Board Act referred to in Sections 35 and 36. Moreover, under Tamil Nadu
Housing Board too, there is no inhibition against acquisition of land for the
purpose of the Board except in accordance with and as a part of the scheme.
For
all the above reasons, we find it difficult to read the holding in Mohammed Yousef
as saying that in no event can the land be acquired for the purpose of the
Act/Board unless a final and effective scheme is framed by the Housing Board
under the provisions of Sections 37 to 56. The said limitation applies only
where the land is sought to be acquired avowedly for the purpose of execution
of a housing or improvement scheme prepared by the Housing Board under
Chapter-VII of the Tamil Nadu Housing Board Act. In other words, unless the
notification under section 4 of the land Acquisition Act expressly states that
land proposed to be acquired is required for executing a housing or improvement
scheme (i.e., a final and effective scheme) framed by the Housing Board under
the provisions of the Tamil Nadu Housing Board Act, the principle and ratio of
Mohammed Yousef is not attracted. Mere statement in the notification that land
is required for the purpose of the Housing Board would not by itself attract
the said principle and ratio. In the instant appeals, the notifications do not
even state that the land proposed to be acquired is meant for the purpose of
the Housing Board.
With
respect to the other decision relied upon by the learned counsel for
respondents, viz., Maharashtra Housing and Area Development Authority & Anr.
V. Gangaram & Ors. (1994 (2) S.C.C.89.), (to which one of us, K.Ramaswamy,
J. was a party), it may be said that it
____________________________________________________________ *
This
is the position, it may be reiterated, under the Tamil Nadu Housing Board Act
without reference to the Amendment Act 5 of 1992. If the Amending Act which has
been given respective effect from April 22, 1961 is taken into account, it is
obvious that even in a case where land is proposed to be acquired avowedly for
executing a housing or improvement scheme framed by the Housing Board under
Chapter-VII of the Act, it is not necessary that there should be a final and
effective scheme in existence before issuing a notification under Section 4 of
the Land Acquisition Act. Sub-section (2) of Section 70, added by the said
Amendment Act, reads as follows: "Notwithstanding anything contained in
this Act, proceeding under the Land Acquisition Act, 1894 (Central Act I of
1894) may be taken for acquiring any land or any interest therein under
sub-section (1) even before framing any housing or improvement scheme.
applies
the ratio of Mohammed Yousef in the light of the scheme and provisions of the Maharashtra
Housing and Area Development Act, 1976. For the purpose of these cases, it is
not necessary to say more about the said decision, particularly because we have
had no occasion to examine the provisions and the scheme of the Maharashtra
Act.
The
next question is whether the public purpose stated in the three notifications
concerned is vague. It must be remembered that what is vague is a question of
fact to be decided in each case having regard to the facts and circumstances of
that case. By saying that the public purpose in the said notifications is vague
what the respondents really mean is not that is not a public purpose but that
since the public purpose is expressed in vague terms and is not particularised
with sufficient specificty, they are not in a position to make an effective
representation against the proposed acquisition.
In Aflatoon,
the Constitution Bench dealt with the question whether the acquisition of a
large extent of land for a public purpose, viz., "the planned development
of Delhi" was vague. Mathew,J., speaking for the Constitution Bench,
stated that" according to the section....it is only necessary to state in
the notification that the land is needed for a public purpose" and then
added " the wording of Section 5-A would make it further clear that all
that is necessary to be specified in a notification under s.4 is that the land
is needed for a public purpose. One reason for specification of the particular
public purpose in the notification is to enable the person whose land is sought
to be acquired to file objection under s.5A. Unless a person is told about the
specific purpose of the acquisition, it may not be possible for him to file a
meaningful objection against the acquisition under s.5A". The learned
Judge then referred to the ratio of Munshi Singh and held, "we think that
the question whether the purpose specified in a notification under s.4 is
sufficient to enable an objection to be filed under s.5A would depend upon the
facts and circumstances of each case". The learned Judge also referred to
the decision in Arnold Rodricks and held: "(1)n the case of an acquisition
of a large area of land comprising several plots belonging to different
persons. the specification of the purpose can only be with reference to the
acquisition of the whole area. Unlike in the case of an acquisition of a small
area, it might be practically difficult to specify the particular public
purpose for which each and every item of land comprised in the area is
needed." [Emphasis added] In Lila Ram etc. V. Union of India & Ors.etc
(1976(1) S.C.R.341), another Constitution Bench held that the public purpose
mentioned in the notification concerned therein,viz., "for the execution
of the Interim General Plan for the Greater Delhi", is specific in the
circumstances and does not suffer from any vagueness. The Court again pointed
out that the notification does not pertain to a small plot but a huge area
covering thousands of acres and in such cases, it is difficult to insist upon
greater precision for specifying the public purpose because it is quite
possible that various plots covered by the notification may have to be utilised
for different purposes set out in the Interim General Plan. Of course, that was
a case where the Interim General Plan was prepared and published by the
Government after approval by the Cabinet as a policy decision for development
of Delhi as an interim measure till the master plan could be made ready.
The
above decisions, and particularly the decision in Aflatoon, do establish that
whether the public purpose stated in the particular notification is vague or
not is question of fact to be decided in the facts and circumstances of each
case and further that where a large extent of land is acquired, it would not be
proper to insist upon the Government particularising the use to which each and
every bit of the land so notified would be put to. The three notifications
concerned herein, we are told, pertain to about 400 acres in all. The parties
have not furnished copies of the notifications in their entirety. Only Sri Ashok
Sen has supplied the full text of the notification dated February 19, 1975. It
shows that a total extent of ninety seven acres one cent was proposed to be
acquired, affecting the holdings of about twenty five persons, some of them
holding such small extents of 0.26 or 0.25 acres.
So far
as the decision in Munshi Singh (decided by the Bench comprising K.S.Hegde, A.N.Grover
and D.G.Palekar,JJ.) is concerned, it does contain certain observations
supporting the petitioners' contentions but it must be remembered that this
decision was referred to and explained in Aflatoon.In Aflatoon, it was stated that
whether the public purpose stated in a particular notification is vague or not
is a question of fact to be decided in each case and cannot be treated as a
question of law. It was also emphasised that where large extents are sought to
be acquired for development or similar purposes, it would not be possible to
specify how each owner's bit would be utilised and for what purpose. We are of
the respectful opinion that the decision in Munshi Singh should be read subject
to the explanation and the holding in Aflatoon which is a decision of a
Constitution Bench. As pointed out hereinbefore, in a subsequent decision in
Lila Ram, another Constitution Bench has also emphasised the very same aspect.
We
are, therefore, of the opinin that Munshi Singh does not come to the rescue of
the writ petitioners-respondents in these matters.
There
is yet another and a very strong factor militating against the writ
petitioners. Not only did they fail to file any objections in the enquiries
held under Section 5-A, they also failed to act soon after the declarations
under Section 6 were made. As stated above, the declarations under Section 6
were made in the Year 1978 and the present writ petitions were filed only
sometime in the year 1982-83 when the awards were about to be passed. It has
been pointed out in Aflatoon that laches of this nature are fatal. Having held
that the public purpose specified in the notification concerned therein is not
vague, Mathew, J. made the following observations :
"Assuming
for the moment that the public purpose was not sufficiently specified in the
notification, did the appellants make a grievance of it at the appropriate
time? If the appellants had really been prejudiced by the non- specification of
the public purpose for which the plots in which they were interested were
needed, they should have taken steps to have the notification quashed on that
ground within a reasonable time. They did not move in the matter even after the
declaration under s.6 was published in 1966. They approached the High Court
with their writ petitions only in 1970 when the notices under s.9 were issued
to them............
Nor do
we think that the petitioners in the writ petitions should be allowed to raise
this plea in view of their conduct in not challenging the validity of the
notification even after the publication of the declaration under s.6 in 1966.
Of the two writ petitions, one is filed by one of the appellants. There was
apparently no reason why the writ petitioners should have waited till 1972 to
come to this Court for challenging the validity of the notification issued in
1959 on the ground that the particulars of the public purpose were not
specified. A valid notification under s.4 is a sine qua non for initiation of
proceedings for acquisition of property. To have sat on the fence and allowed
the Government to complete the acquisition proceedings on the basis that the
notification under s.4 and the declaration under s.6 were valid and then to
attack the notification on grounds which were available to them at the time
when the notification was published would be putting a premium on dilatory
tactics.
The
writ petitions are liable to be dismissed on the ground of laches and delay on
the part of the laches and delay on the part of the petitioners (See Tilokchand
Motichand and Ors. V. H.B.Munshi and Another (1969 (2) S.c.R.824); and Rabindranath
Bose and Others v. Union of India & Ors (1970 (2)
S.C.R.697).
From
the counter affidavit filed on behalf of the Government, it is clear that the
Government have allotted a large portion of the land after the acquisition
proceedings were finalised to Cooperative housing societies. To quash the
notification at this stage would disturb the rights of third parties who are
not before the Court." The above observations speak for themselves-and are
fatal to the writ petitioners.
We may
next take up the other ground assigned by the High Court for quashing the
notifications, viz., the delay in passing the award after the declaration under
Section 6 were published. While we agree that there has certainly been delay in
passing the award, but this circumstance must be weighed against the beneficial
counter-vailing provision contained in Section 48-A, added by the Tamil Nadu
Legislature in the Land Acquisition Act. Section 48-A reads:
"48-A.
Compensation to be awarded when land not acquired within two years.-- (1) Where
the Collector has not made an award under Section 11 in respect of any land
within a period of two years from the date of the publication of the
declaration under Section 6 or of the issue of a notice under clause (c) of
sub-section (3) of Section 40 of the Madras City Improvement Trust Act, 1950,
or of the publication of a notification under Section 53 of that Act as the
case may be, the owner of the land shall, unless has been responsible for the
delay to a material extent be entitled to receive compensation for the damage
suffered by him in consequence of the delay.
(2)
The provision of Part III of this Act shall apply, so far as may be, to the
determination of the compensation payable under this section." According
to this provision, if the award is not made within two years of the declaration
under Section 6, the owner of the land shall be entitled to receive
compensation for the damages suffered by him in consequence of the delay unless
he is himself responsible for the dely to material extent. Subsection (2)
further says that for determination of the compensation under the said section,
the provisions in Part-III of the Land Acquisition Act shall apply. Even apart
from this provision, there is yet another circumstance which should be taken
note of in these appeals. In these cases, the land acquisition proceedings were
pending on 30th day of April, 1982 and if so, the persons interested would be
entitled to the additional amount by sub-section (1-A) of Section 23 of the
Land Acquisition Act. According to the said sub-section, "(I)n addition to
the market value of the land..... the Court shall in every case award an amount
calculated at the rate of twelve per centum per annum on such market-value for
the period commencing on and from the date of the publication of the
notification under Section 4, sub-section (1), in respect of such land to the
date of the award of the Collector or the date of taking possession of the land,
whichever is earlier." The provisions in this sub- section are designed to
compensate the owners of the land for the rise in prices during the pendency of
the land acquisition proceedings. It is a measure to off-set the effects of
inflation and the continuous rise in the values of properties over the last few
decades and appears to be more beneficial to the claimants. In view of Section
48(A) [supra), the provision in Section 23(1-A) and the delay on the part of
the writ petitioners in not approaching the Court within a reasonable time, we
are of the opinion that the delay in passing the awards after the publication
of the declaration under Section 6 cannot be held to be fatal.
We may
append a note of caution. This holding of ours may not be understood as saying
that land acquisition proceedings can be delayed indefinitely and that the
provision in Section 23(1-A) is an adequate recompense for such delay. No such
proposition can be countenanced. These proceedings must be concluded with due
expedition. It is this concern which has led the Parliament to enact various
time limits for making the declaration under Section 6 and for making the award
by way of Amendment Act 68 of 1984. The person who is deprived of the land must
be given his due compensation without avoidable delay. This obligation flows
from the duty to exercise the statutory power in a reasonable and fair manner,
more particularly where the subject-matter is acquisition of land/property. [See
Ram Chand and others V. Union of India and Others (1994 (1) S.C.C.44.)]. It is only in the
particular facts and circumstances of this case, mentioned above, that we are
disinclined to interfere.
There
remains the last ground assigned by the High Court in support of its decision.
The High Court has held that the noncompliance with sub-rule (b) and (c) of
Rule 3 of the Rules made by the Government of Tamil Nadu pursuant to Section
55(1) of the Land Acquisition Act vitiates the report made under Section 5-A
and consequently the declarations made under Section 6. The said sub-rules
provide that on receipt of objections under Section 5-A, the Collector shall
fix a date of hearing to the objections and give notice of the same to the
objector as well as to the department. It is open to the department to file a
statement by way of answer to the objections filed by the land-owners.
The
submission of the writ petitioner was that in a given case it may well happen
that in the light of the objections submitted by the land-owners, the concerned
department may decide to drop the acquisition. Since no such opportunity was
given to the department concerned herein, it could not file its statement by
way of answer to their objections.
This
is said to be the prejudice. We do not think it necessary to go into the merits
of this submission on account of the laches on the part of the writ
petitioners.
As
stated above, the declaration under Section 6 were made some in the year 1978
and the writ petitioners chose to approach the Court only in the Years 1982-83.
Had they raised this objection at the proper time and if it were found to be
true and acceptable, opportunity could have been given to the Government to
comply with the said requirement.
Having
kept quiet for a number of years, the petitioners cannot raise this contention
in writ petitions filed at a stage when the awards were about to be passed.
For
the above reasons, the appeals are allowed, the judgment of the High Court
under appeal herein is set aside and the writ petitions filed by the
respondents, from which these appeals arise, are dismissed. No costs.
CIVIL
APPEAL NOS. 9822,9814-18 AND 9819 OF 1995. [ARISING OUT OF S.L.P. (C) NOS.13725
OF 1992, 7332-36 OF 1992 AND 6588-89 OF 1992.] Leave granted.
These
appeals are preferred against the judgment of the Madras High Court quashing
the notifications issued under Section 4(1) of the Land Acquisition Act, 1894.
In view of our judgment in Civil Appeal Nos.1865-70 of 1992, these appeals are
accordingly allowed. No costs.
CIVIL
APPEAL NOS.9823-24 OF 1995 [ARISING OUT OF S.L.P.(C) NOS.1785-86 OF 1995.
LEAVE
GRANTED.
These
appeals arise form the judgment of the Madras High Court dismissing the writ
petitions in view of the Amendment Act 5 of 1992. The High court has upheld the
validity of the Amendment Act. The notifications (s) under section 4 concerned
herein has not been placed before us. No separate argument is addressed in
these matters.
Accordingly,
following our judgment in Civil Appeal No.1865- 70 of 1992, these appeals are
also dismissed. No costs.
CIVIL
APPEAL NO.1740 OF 1995 AND CIVIL APPEAL NOS.9838-39,M 98366-37 OF 1995 [ARISING
OUT OF S.L.P. (C) NOS.14617-20 OF 1994] Leave granted.
These
appeals are preferred against the judgment of the Division Bench of the Madras
High Court upholding the constitutional validity of the Tamil Nadu Housing
Board Amendment Act 5 of 1992. The purpose of acquisition stated in the
notifications under Section 4(1) of the Land Acquisition Act is "a
development of area by building houses by the Tamil Nadu Housing Board".
In view of our judgment in Civil Appeal Nos.1865-70 of 1992, the notification
must be deemed to the valid even without reference to the Tamil Nadu Amendment
Act 5 of 1992. These appeals are accordingly dismissed .
No
Costs.
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