Full Judgment Text
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PETITIONER:
STATE OF TAMIL NADU AND ANR.
Vs.
RESPONDENT:
A. MOHAMMED YOUSEF AND ORS.
DATE OF JUDGMENT06/08/1991
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1992 AIR 1827 1991 SCR (3) 375
1991 SCC (4) 224 JT 1991 (3) 347
1991 SCALE (2)235
ACT:
Land Acquisition Act, 1894--Section 4 Notification for
acquisition of land for construction of houses by Tamii Nadu
Housing Board without preparing scheme under the Madras
State Housing Board Act, 1961-Validity of.
HEADNOTE:
Under Section 4 of the Land Acquisition Act, 1894 a
notification was issued by the petitioners proposing to
acquire the land of the respondents for construction of
houses by the Tamil Nadu Housing Board, constituted under
section 3 of the Madras State Housing Board Act, 1961.
The respondents challenged the impugned notification in
a writ petition, which was allowed by the Single Judge of
the High Court holding that the public purpose mentioned in
the notification was too vague in absence of details relat-
ing to the scheme for which the acquisition was sought to be
made, and consequently the land owners could not effectively
avail of the benefits under section 5A of the Land Acquisi-
tion Act by filing objection. This order was affirmed by the
Division Bench of the High Court.
The State-the petitioners filed this Special Leave
Petition contending that the notification had adequately
described the nature of the public purpose by mentioning the
proposed construction of residential buildings and the
respondents ought to have filed their objections under
section 5-A instead of filing the writ petition; that the
procedure in regard to the preparation of the scheme has to
await the conclusion of the land acquisition proceeding;
that the land acquisition proceeding should not be condemned
as pre-mature on the ground that the scheme has not been
framed.
The respondents contended that in view of the provi-
sions of the Housing Board Act a proceeding for land acqui-
sition can be commenced only after a scheme under the Act is
framed, which has not been done in the present case. The
land acquisition proceeding, being pre-mature has been
rightly quashed.
376
On the question whether the acquisition proceeding
could De initiated only after the framing, of the proposed
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scheme and not earlier, dismissing the Special Leave Peti-
tion of the State, this Court,
HELD: 1.01. The procedure prescribed for preparation of
a scheme indicates that before it can be finalised, full
publicity has to be given inviting objections; and in case
of objections, the same have to be duly considered before
granting sanction. Further, if anybody is still aggrieved,
he has a right of appeal to the State Government. It is only
after this stage is over that the scheme becomes final and
enforceable. [378F]
1.02. Section 39 of the Madras State Housing Act, 1961
while enumerating the matters to be included in the scheme,
specifically mentions acquisition of land in clause (a). If
the acquisition is contemplated as a subject matter of the
scheme itself, it follows that it must await the preparation
of the scheme wherein it will be included. [379F]
1.03. The acquisition of the land is a part of the
execution of the scheme itself. Since the acquisition is
included in the scheme the process of execution of the
scheme starts immediately when steps for acquisition are
taken. [381A-B]
1.04. If the notification under section 4 under the Land
Acquisition Act is published without waiting for the scheme,
it will 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 therefore does not serve
any public purpose, or that another piece of land in the
area concerned, is far more suitable, leading to the possi-
ble conclusion that the proposed acquisition is mala fide.
The provisions of the Housing Board Act also suggest the
same. [381-DF]
1.05. It will be practical and consistent with common
sense to have the scheme finalised before starting an acqui-
sition proceeding. A proceeding’ under the 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. The notification issued under section 4 hi
the present case must, therefore, be held to be pre-mature,
and it was rightly quashed by the High Court. [381G-382A]
1.06. Although the initiation of the proceeding for
acquisition has to await framing of a scheme, it does not
mean that the concluded acquisition proceeding can be con-
demned as void so as to be ignored
377
later. A ground based on the present judgment shall be
available to the land owners only for such land acquisition
proceedings, which are under challenge and are still pending
decision. [382C-D]
Babu Barkya Thakur v. The State of Bombay and Others,
[1961] 1 SCR 128, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
No. 3790 of 199 1.
From the Judgment and Order dated 29.3. 1990 of the
Madras High Court in W.A. No 1028 of 1989.
G. Ramaswamy, Attorney General, R. Mohan, V. Krishna
murthy and R. Ayyam Perumal for the Petitioners.
K. Parasaran, K.R. Chaudhary, T.V.S.N. Chari, Ms.
Suruchi Aggarwal and Ms. Manjula Gupta for the Respondents.
The Judgment of the Court was delivered by
SHARMA, J. The respondents have successfully challenged
a notification under Section 4 of the Land Acquisition Act,
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1894 proposing to acquire their land before the Madras High
Court. Their writ petition was allowed by a learned Single
Judge and on appeal the order was confirmed by Division
Bench. The State of Tamil Nadu has challenged the decision
by the present Special Leave Petition.
2. The acquisition proceeding, which is the subject
matter of present case, was started for obtaining land for
construction of houses by the Tamil Nadu Housing Board,
constituted under Section 3 of the Madras State Housing
Board Act, 1961 (Madras Act No. 17 of 1961) (hereinafter
referred to as the ’Housing Board Act’) and this was men-
tioned in the impugned notification. The High Court has held
that the public purpose mentioned in the notification was
too vague in absence of details relating to the scheme for
which the acquisition is sought to be made, and consequently
the land owners cannot effectively avail of the benefits
under Section 5A of the Land Acquisition Act by filing their
objection. The learned Attorney General, appearing for the
petitioner State, has contended that the notification has
adequately described the nature of the public purpose by
mentioning the proposed construction of residential build-
ings, and the respondents ought to have filed their objec-
tions under Section 5A instead of
378
moving the High Court with a writ application. Relying on
the decision in Babu Barkya Thakur v. The State of Bombay
and Others, [1961] 1 SCR 128 it has been argued that even
assuming that the public purpose was not mentioned in the
notification with sufficient particularity, the proceeding
cannot be quashed at this stage and the High Court should
have dismissed the writ petition by pointing out that the
remedy of the land owners was under Section 5A.
3. The reply of Mr. Parasaran, the learned counsel for
the respondents, is that in view of the provisions of the
Housing Board Act a proceeding for land acquisition can be
commenced only after a scheme under the Act is framed, which
has not been done in the present case. The land acquisition
proceeding, therefore, being premature has been rightly
quashed.
4. As is indicated by the preamble of the Housing Board
Act, the object of establishment of the Housing Board is to
provide for the execution of housing and improvement
schemes. The Act envisages eight types of schemes detailed
in section 40, the housing scheme, as in the present case,
being one of them. The framing of the schemes is dealt with
in Chapter VII (Section 35 to 69) and Chapter VIII contain-
ing sections 70, 71 and 72 provides for acquisition and
disposal of land. Section 70 states that land required by
the Board for any of the purposes of this Act may be ac-
quired under the provisions of the Land Acquisition Act and
accordingly the present land acquisition proceeding was
commenced.
5. The procedure prescribed for preparation of a scheme
indicates that before it can be finalised, full publicity
has to be given inviting objections; and in case of objec-
tions, the same have to be duly considered before granting
sanction. Further, if anybody is still aggrieved, he has a
right of appeal to the State Government. It is only after
this stage is over that the scheme becomes final and en-
forceable. Admittedly the proposal to build houses in the
present case has not been put in the shape of a scheme at
all and as stated on behalf of the petitioner a draft scheme
with relevant details will be drawn up after the possession
of the land is secured.
6. The question for decision is whether the acquisition
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proceeding can be initiated only after the framing of the
proposed scheme and not earlier. The learned Attorney Gener-
al contended that having regard to the provisions of the Act
and the other relevant considerations it must be held that
the procedure in regard to the preparation of
379
the scheme has to await the conclusion of the land acquisi-
tion proceeding. It is only after the possession of the land
is delivered to the Board that its engineers and other
experts can go over the land, make necessary inspection and
collect vital data, on the basis of which the scheme can be
drawn up. It is essential to have a clear idea of the area
of the land, its boundaries, and the nature of the soil for
deciding about the details of the proposed scheme, and this
is not possible so long the owner of the land continues in
possession. Any attempt to draw up a scheme earlier has been
described by the learned counsel as an exercise in futility.
Alternatively it has been contended that even if it be held
to be permissible to frame the scheme without waiting for
the acquisition and possession of the land, it cannot be
further assumed that the land acquisition proceeding has to
await the finalisation of the scheme. In other words, both
the proceedings may continue simultaneously, or any of the
proceeding including one for land acquisition can be com-
menced without waiting for the other. In any event, the land
acquisition proceeding should not be condemned as pre-mature
on the ground that the scheme has not been framed. We have
closely examined the entire Act with the assistance of the
learned counsel for the parties and in our view the conten-
tion on behalf of the respondents that the proceeding for
acquiring land can be commenced only after the scheme is
framed, is well founded.
7. As has been stated earlier, Chapter VII containing
sections 35 to 69 deals with the framing of the scheme. The
Act has laid down separate procedures for the different
types of schemes, according to necessity and suitability.
Some of the schemes do not require acquisition of land,
which is however, essential for constructing residential
buildings under the housing scheme. Section 39 of the Act,
therefore, while enumerating the matters to be included in
the scheme, specifically mentions acquisition of land in
clause (a). If the acquisition is contemplated as a subject
matter of the scheme itself, it follows that it must await
the preparation of the scheme wherein it will be included.
The Act requires the proposed scheme to be published
permitting objections to be made, and if they are found to
be valid, under section 53, the scheme to be modified or
abandoned. Sub-section (1) of section 49 directs the notice
of the draft housing scheme to include and specify the
following information as contained in clause (b) for the
purpose of publication and information to the general pub-
lic:
"(b) the place or places at which particulars
of the scheme a map of the area, and details
of the land which it is pro-
380
posed 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)
The underlined words above reaffirm the position that the
acquisition of the land has to be a part of the scheme,
which can be executed only after its finalisation. Apart
from the provisions of section 53 mentioned above, section
56 further clothes the Board with the power to alter or
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cancel the scheme even after it is finally sanctioned. The
language of clause (b) of the proviso to the section, which
is quoted below, once more leads to the same conclusion that
acquisition of the land has to await the framing of the
scheme:
"(b) If any alteration involves the acquisi-
tion otherwise than by agreement of any land
not previously proposed to be acquired in the
original scheme, the procedure prescribed in
the forgoing sections of this Chapter shall,
so far as it may be applicable, be followed as
if the alteration were a separate scheme."
(emphasis added)
8. Mr. Attorney General repeatedly said that unless the
Board gets actual possession of the land in question its
officers cannot go over the same for collecting the informa-
tion essential for drawing up of the scheme. It has, there-
fore, been suggested that it is wholly impractical to expect
the scheme to be framed before obtaining the possession of
the land. Mr. Parasaran, the learned counsel for the re-
spondents, rightly pointed out that the provisions of sec-
tion 147 furnish a complete answer to this argument. The
section empowers the Chairman (now the Managing Director) of
the Board or any person either generally or specially autho-
rised by him in this behalf to enter into or upon any land
with or without assistants or workmen for the purpose of
making any inspection, survey, measurement, valuation or
enquiry or to take levels or to dig or bore into sub-soil or
to set-out boundaries and intended lines of work et cetera.
The last clause in the section gives wide power to do any
other thing which may appear necessary for achieving the
purpose of the Act subject to certain reasonable restric-
tions.
The learned Attorney General also relied on sections 55
and 72 in support of the petitioners’ stand. Section 55
directs the Board to proceed to execute the scheme as soon
as it becomes enforceable. It is
381
contended that if the acquisition proceeding is not over by
the time the scheme is ready, undue delay is bound to take
place. The fallacy in the argument is that it assumes that
the acquisition of the land is not a part of the execution
of the scheme itself. As has been indicated earlier the
position is otherwise- Since the acquisition is included in
the scheme the process of execution of the scheme starts
immediately when steps for acquisition are taken. Thus there
is no question of any disregard of the command in section
55. Section 72 empowers the Board to lease, sell, exchange
or otherwise dispose of any land vested in or acquired by
it. This power has been granted to the Board, according to
the petitioners, so that if the scheme is abandoned under
section 53 the land already acquired can be disposed of. We
do not see any warrant for linking section 72 with section
53. The Board has been given the power to dispose of any
land whenever it is considered in the interest of the Board
to do so; and the circumstances where it may be expedient to
use this power may be many, as for example, when the scheme
is altered or cancelled under section 56 due to a new devel-
opment.
9. On the other hand, the order, in which the different
steps for the preparation of the scheme and the acquisition
of the land, is suggested on behalf of the petitioners to be
taken, appears to be impractical and defeating the purpose
of section 5A of the Land Acquisition Act. If the notifica-
tion under section 4 under the Land Acquisition Act is
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published without waiting for the scheme, as has been done
in the present case, it will 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
therefore does not serve any public purpose, or that another
piece of land in the area concerned, is far more suitable,
leading to the possible conclusion that the proposed acqui-
sition is mala fide. As discussed above, the provisions of
the Housing Board Act also suggest the same. The Board has
not been vested with the unrestricted power to frame any
scheme, as suggested by its planners. It has to take into
account the representation by the local authority as men-
tioned under section 50 and the objection of any other
person under section 53 and decide the same on merits before
according sanction. The matter is not concluded even at that
stage; the aggrieved person may appeal to the State Govern-
ment and it is only subject to the final result therein that
the scheme becomes enforceable. In this set up it will be
practical and consistent with common sense to have the
scheme finalised before starting an acquisition proceeding-
We, accordingly, hold that a proceeding under the Land
Acquisition Act read with section 70 of the Madras Housing
Board Act, can be commenced only after framing the scheme of
382
which the land is required. The notification issued under
section 4 in the present case must, therefore, be held to be
pre-mature, and it was rightly quashed by the High Court.
10. Before closing his argument Mr. Attorney General
stated that in the past a large number of land acquisition
proceedings have been concluded and lands acquired without
first framing the scheme and on the basis of the present
judgement there may be an attempt by the land owners of
those lands to re-open the matter. We do not think that as a
result of this judgment the concluded land acquisition
proceedings can be allowed to be re-opened. Although we have
held that the initiation of the proceeding for acquisition
has to await framing of a scheme, it does not mean that the
concluded acquisition proceeding can be condemned as void so
as to be ignored later. However, to avoid unnecessary con-
troversy we are hereby clarifying the position that a ground
based on the present judgment shall be available to the land
owners only for such land acquisition proceedings, which are
under challenge and are still pending decision.
11. The special leave petition is dismissed, but in the
circumstances without costs.
V.P.R. Petition dismissed.
383