Appeal No 1720 of 1986
From the Judgment and Order dated 571985 of the Andhra Pradesh High Court in Writ Appeal No 577 of 1985
B Kanta Rao for the Appellant
K Madhava Reddy and G Prabhakar for the Respondents
The Judgment of the Court was delivered by KANIA J
This is an appeal by Special Leave from the judgment of a Division Bench of the Andhra Pradesh High Court dismissing the Writ Appeal No577 of 1985 filed in that Court
Very few facts are necessary for the disposal of this ap peal
The appellant is the owner of a plot comprising roughly 2 acres of land in Ramavarappadu village Vijayawada Taluk in the Krishna District in Andhra Pradesh
The Government of Andhra Pradesh sought to acquire about 1 acre and 89 cents out of the aforesaid land for a public propose
A Notifica tion under section 41 of the Land Acquisition Act 1894 hereinafter referred to as the said Act was published in the Government 117 Gazette on February 9 1976
The substance of the said notification was published in the locality where the land proposed to be acquired is situated on April 2 1978 long after the period of 40 days within which it was required to be published as per the provisions of section 41 of the said Act as amended by the Andhra Pradesh Amendment Act 1983 Act 9 of 1983
Enquiry under section 5A of the said Act was dispensed with invoking the urgency clause as per section 174 of the said Act
Notification under section 6 was published on the same day as the publication of the notification under section 41 of the said Act
An inquiry was conducted regarding the fixation of compensation to be awarded to the appellant and others whose lands were ac quired under the said notification
It appears that during the course of the said inquiry the appellant stated to the Land Acquisition Officer concerned that he was willing to agree to the land being acquired provided he was given compensation in a lump sum
Probably the reason was that if the compensation was awarded in a lump sum without delay the appellant might have been able to purchase some other land as his holding was under the ceiling limit
The aforesaid facts have been found by the Trial Court and accepted by the High Court
On November 9 1979 before any award was made the consent to the acquisi tion of the land given by the appellant as aforestated was withdrawn by him and on May 14 1981 the appellant filed a writ petition in the High Court questioning the validity of the land acquisition proceedings
The learned Single Judge before whom the said writ petition along with another writ petition came up for hearing held that the appellant had agreed to the acquisition of the said land on compensation being paid as aforestated and hence it was not open to the appellant to challenge the validity of the said notifica tions issued under section 41 and section 6 of the said Act
It was held by him that the withdrawal of the said representation or consent by the appellant did not in any manner assist him
The learned Judge dismissed the writ petition filed by the appellant without going into the merits of the aforesaid petition on the aforesaid basis
This judgment was upheld by the Division Bench of the High Court which dismissed the aforesaid writ appeal
It is the correctness of these decisions which is impugned before us
In our view the learned Single Judge and the Division Bench of the High Court of Andhra Pradesh were with re spect clearly in error in dismissing the respective writ petition and the appeal filed by the appellant on the ground that the appellant had stated that he was willing to accept the acquisition provided a lump sum compensation was awarded to him
The statement of the appellant amounted in law to no more than an offer in terms of the Contract Act
The said offer was never accepted by the Land Acquisition Officer to whom it was made
Leave alone making 118 the award of lump sum compensation no award at all was made by the said officer awarding compensation to the appellant till November 9 1979 when the aforesaid offer was with drawn by the appellant or even till the writ petition was filed
Till the offer was accepted there was no contract between the parties and the appellant was entitled to with draw his offer
There was nothing inequitable or improper in withdrawing the offer as the appellant was in no way bound to keep the offer open indefinitely
The writ petition therefore ought not to have been dismissed on the ground of the appellant having made a statement or consented as afore stated before the Land Acquisition Officer
On the merits it is clear that the acquisition of the land is bad in law because the substance of the notification under section 40 of the said Act was not published in the locality within forty days of the publication of the notifi cation in the Government Gazette
The time limit of forty days for such publication in the locality has been made mandatory by section 41 of the said Act as amended by the Andhra Pradesh Amendment Act
It is well settled that such non compliance renders acquisition bad in law
In the result the appeal succeeds and Rule in the writ petition is made absolute
It is declared that the acquisi tion of the aforesaid land of the appellant is bad in law
If the possession has been taken the same must be returned to the appellant
The appeal is allowed as aforestated with costs throughout
TNA Appeal Allowed


Summary:
The appellant was a tenant originally in the old building but after it was purchased by the respondent he vacated it and became a tenant under the respondent in the new premises
In the old building the appellant had sub tenants who shifted to the new premises along with the appellant when the latter occupied those premises
One of the terms of the lease which were contained in a letter dated June 7 1948 written by the respondent to the appellant provided  In the shops in the old chawl which are with you you have kept sub tenants
We are permitting you to keep sub tenants in the same manner in this place also
 On April 20 1949 the respondent brought a suit for ejectment against the appellant on the ground inter alia that section 15 of the Bombay Hotel and Lodging Houses Rates Con trol Act 1947 prohibited sub letting and under section 131e of the Act the landlord has the right to evict the tenant on account of sub letting
The appellant s defence was 1 that section 15 of the Act was confined to any other law  that it did not apply to contracts between the landlord and tenant and therefore it did not preclude an agreement between the parties as to sub letting 2 that the parties were in pari delicto and therefore the respondent could not succeed and 3 that the right of the respondent to sue for ejectment on the ground of sub letting being a personal right for his benefit he must be taken to have waived it as he had allowed the appellant to sub let and consequently he could not evict him under section 131e of the Act
Held  1 that the non obstante clause  Notwithstanding anything contained in any law  in section 15 of the Bombay Hotel and Lodging Rates Control Act 1947 applies to contracts also as they would fall under the provisions of the law relating to contracts 2 that the respondent was entitled to sue for ejectment though the agreement recognised sub letting as the suit was brought not for the enforcement of the agreement but to enforce the right of eviction which flowed directly from an infraction of the provisions of section 15 of the Act and for which the Act itself 28 218 provided a remedy
The section is based upon public policy and where public policy demands even an equal participant in an illegality is allowed relief by way of restitution or rescission though not on the contract and 3 that the plea of waiver which the appellant relied on cannot be sustained because as a result of giving effect to that plea the court would be enforcing an illegal agreement and thus contravene the statutory provisions Of section 15 Of the Act
An agreement to waive an illegality is void on grounds of public policy and would be unenforceable
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