ecial Leave Petition C No 3790 of 199 1
From the Judgment and Order dated 293
1990 of the Madras High Court in WA No 1028 of 1989
G Ramaswamy Attorney General R Mohan V Krishna murthy and R Ayyam Perumal for the Petitioners
K Parasaran KR Chaudhary TVSN 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 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
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 vs The State of Bombay and Others 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
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
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
The question for decision is whether the acquisition 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
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 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
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 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
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
The special leave petition is dismissed but in the circumstances without costs
VPR Petition dismissed


Summary:
On 31st May 1986 the Government of India approved in principle the Two Stream  concept of career management of Army Officers which envisaged that officers on promotion to Major General and Lt General will be bifurcated into the Command and Staff  and the Staff Only  Stream
By an order dated 9th September 1986 issued by Military Secretary Army Headquarters the modalities of the concept were worked out and it was inter alia provided that for the purpose of seniority officers of the Staff Only  Stream will be junior to officers of the Command and Staff Stream
While adopting the methodology for implementation of the Two Stream Concept  in its note dated 22nd September 1986 the Military Secretary stated that two options are available for fixing the sequence of promotion under the Stream Concept 
Under option A  the existing sequence of promo tion is maintained and in that officers are to be promoted as per their inter se seniority irrespective of the stream
In the case of Option B  whereas the existing sequence of promotion is maintained but promotion is to be effected in accordance with the stream in which an officer is being promoted
After giving advantages and disadvantages of the two options the said note recommended that option B  should be adopted
The Military Secretary s note was ap proved by Vice Chief of Army Staff and the Chief of Army Staff
By a communication dated 1st June 1987 the Military Secretary clarified its earlier note dated 22nd September 1986 explaining that officers of the General Cadre of a particular batch seniority approved in the Command and staff  Stream will be en block senior to those 351 officers of the same batch approved on the Staff Only  Stream
However an officer of an earlier batch approved on the Staff Only  Stream will be senior to an officer of subsequent batch approved on the Command and Staff Stream
Under the promotion policy of Army every officer is given three chances for consideration for promotion
The first opportunity is called fresh cases
The second oppor tunity is called first review cases and the third opportu nity is called final review cases
An officer not approved for promotion loses one year on seniority and slides into the batch of the next year
The respondent commissioned in the army in 1954 while acting as Brigadier was selected as Major General in 1956 batch
Accordingly his seniority was fixed alongwith 1956 batch
While working as Major General he was considered for promotion to the rank of Lt General in 1989 but was disap proved
He thus lost seniority of 1956 batch
He was then considered as a first review case in 1990 alongwith 1957 batch comprising of final review case of 1955 batch first review case of 1956 batch and fresh case of 1957 batch and was approved for selection for Staff Only  Stream
Since he was approved only for Staff Only  Stream in the select panel dated 26th October 1990 he was placed below all other Major Generals who were approved for selection in the Stream of Command and Staff
Aggrieved by his placement below the officers who were approved for Command and Staff  Stream he filed a writ petition in the High Court which directed the Union of India to treat the respondent senior to all the other Major Gener als who were promoted to the acting rank of Lt General in the Command and Staff  stream and to expeditiously promote him ahead of the 1957 batch
Against the decision of the Division Bench of the High Court the Union of India filed an appeal in this Court
Setting aside the order of the High Court this Court HELD 1
The Division Bench of the High Court totally misunderstood the note of the Military Secretary dated 22nd September 1986 as well as the note of the Vice Chief of Army Staff
In the note of the Military Secretary dated 22nd September 1986 Option A  which was prevalent practice was substituted by option B  which was recommended for future and which was accepted both by Vice Chief of Army Staff as well as Chief of Army Staff
369H 370E 352 2
It is clear from option B  which was adopted for working out the Two Stream Concept  that the seniority will first be given to the Command and Staff  stream selected from any of the earlier batches and after the Command and Staff  stream has been accorded the seniority the three streams of Staff Only  will be given seniority and that the final review the first review or fresh stream of Staff Only  rank below the similar three streams of Command and Staff 
362B C 3
It is also clear from the Scheme that the Officer who Were approved for Command and Staff  Stream can be appoint ed both for Command  as well as Staff  vacancies whereas the officers who were approved only for stream of Staff Only  can only be appointed to the vacancies relating to Staff  and cannot be appointed relating to vacancies for Command 
The expression same batch  referred to in para graph 9 of the Military Secretary s letter dated 1st June 1987 is for the officers who were considered for selection at one time and not the individual batch of the Major Gener al
370B 4
Option B  has not been reviewed till date
There can be no doubt that if option A  was available for preparation of select list the respondent would have been senior to other persons who were recommended for Command and Staff  Stream
But option A  was given up and option B  was recommended for approval
Since option B  has been adopted and accepted the seniority of the respondent placed in the panel dated 26th October 1990 is unexceptionable
370F G 5
The respondent cannot take advantage for being pro moted earlier than the officers selected for the Command and Staff  Stream
374B1