STATE OF TAMIL NADU AND ANR. ETC.

A v.

MAHALAKSHMI AMMAL AND ORS. ETC.

NOVEMBER 16, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.] B

Land Acquisition Act, 1894-Sections 4( 1) and SA-Errata to notification-Eff ect of-Whether errata amounts to fresh notification-If seperate en-

~ quiry is required persuant to the errata. c Land Acquisition Act, 1894-Section 9-llregularity in se1vice-Effect of

Land Acquisition Act, 1894-Section 11-Notification punished in 1978-Possession taken over in 1981-Award made in 199(}-Whether delay renders award invalid.

Land Acquisition Act, 1894-Section lfr-Possession-Taken by way of panchanama without taking over physical possession-If valid-Taking over physical possession-If necessary.

Constitution of India-Article 14-Lands acquired for housing E scheme-Some lands not acquired on grounds of pending litigation or because they were inferior-Held, such exclusion is not discriminatory-Land Acquisition Act-Generally.

The land of the respondents was acquired under the Land Acquisi- F tion Act, 1894. The Notification under section 4(1) of the Land Acquisition Act, 1894 was published on 26.7.1978, the award made on 22.9.1986 and the possession taken over on 24.11.1986.

The learned Single Judge of the High Court dismissed the writ petition of the respondent challenging the acquisition. The Division Bench G quashed. the notification under section 4(1) as well as the declaration • under section 6 of the Act on the ground that the scheme was vague.

The appellants filed appeal by way of Special Leave Petition before this Court. During the pendency of the petition, this Court in State of Tamil Nadu & Ors. Etc. v. L. Krishnan & Ors. Etc., (1996) 1 SCC 250 decided the H

A question of vagueness against the respondent.

Before this Court, the respondent raised the following arguments :

1. Certain lands forming part of the same scheme were excluded from the notification whereas the land of the respondents were sought to B be acquired and therefore, the acquisition is discriminatory and violative of Article 14 of the Constitution of India.

2. Certain lands not covered by the initial notification under section 4(1) of the Land Acquisition Act, 1894 were sought to be included by publishing an errata. Therefore, the notification in respect of such lands must be deemed to have been published after the errata. However, no seperate enquiry was. held in respect of these lands and therefore, the award is bad .

. 3. Notices under sections 9 and 10 of the Land Acquisition Act, 1894 D were served on 120 persons, including a dead person, in a single day.

Therefore, the service was not valid.

4. The panchanama of Land Acquisition taking over possession of the land even though the respondent remained in physical possession of the land is illegal.

5. In case of sun-ey number 2/11, which was included in the notifica tion by way of errata, the award was made on 31.8.1990 and therefore, from 1978 till 1990, the respondents were denied enjoyment of the lands.

The award ought to be set aside on the ground of delay.

F Allowing the appeal, this Court

HELD : 1. The Government laid down guidelines for exclusion of lands which are the subject matter of lay out approved by the Housing Board. The Government having realised the fault in issuing the above G guidelines, thereafter issued another order withdrawing all the guideline issued in the GOs referred to above with immediate effect. Thus, it could be seen that the Government itself having realised the misapplication of the guidelines laid by it and its disastrous effect on the execution of the Housing Scheme prepared by the Housing Board or entrusted to it by Government or local authorities, withdrew the GOs with immediate effect.

H If the lands are excluded from the scheme, the entire scheme gets

frustrated. [4S6-E-G]

2. It is true that the Government having realised that the lands were initially notified to be acquired but did not cover the survey Nos. being situated in the adjacent villages, the errata notification was published and included lands in Survey Nos. 2/S, 2/11 and 2/12. Once errata was published, it dates back to the date of initial Section 4(1) notification, namely, June 26, 1978. It cannot be considered to be a fresh notification issued under section 4(1). It is not in dispute that the respondents, in fact, filed their objections to the notice issued under section SA and Rule 3 of the Rules made by the State Government. The respondents had the opportunity and, in fact, they did participate in section SA enquiry. Therefore, the declaration made under section 6 of the Land Acquisition Act does not get vitiated. [4S6-H; 4S7-A-B]

3. Even if there is an irregularity in service of notice under sections 9 and 10 of the Land Acquisition Act it would be a curable irregularity and on account thereof, award made under section 11 of the Land Acquisition D Act does not become invalid. Award is only an offer on behalf of the State.

If compensation was accepted without protest, it binds such party but subject to section 28A of the Land Acquisition Act. [4S7-E-F]

4. Possession of the acquired land can be taken only by way of a E memorandum, Panchanama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, by the erstwhile owner is only illegal or unlawful possession which does not bind the Government. [4S7-F-G]

S. It is well settled law that publication of the declaration under F section 6 of the Land Acquisition Act gives conclusiveness to public purpose. Award was made on September 26, 1986 and for survey No. 2/11 award was made on August 31, 1990. Possession having already been taken on November 24, 1981, it stands vested in the State under section 16 of the Land Acquisition Act free from all encumbrances and thereby the Govern- G ment acquired absolute title to the land. The initial award having been. made within two years under section 11 of the Land Acquisition Act, the fact that subsequent award was made on 31st August, 1990 does not render the initial award invalid. [4S7-C-D]

6. The respondents are adequately compensated for loss, if any, for H

A denial of enjoying the lands from the date of taking possession till date of deposit. [ 458-A]

State of Tamil Nadu and Anr. v. A. Mohammed Yousef and Ors., [1991) 4 sec 224 and State of Tamil Nadu & Ors. Etc. v. L. Krishnan & Ors. Etc., [1976) 1 sec 250, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11555 of 1995 Etc.

From the Judgment and Order dated 18.3.93 of the Madras High Court W.A. No. 1884 of 1987.

C. S. V aidyanathan and A. Mariarputham for the Appellants.

S. Sivasubramaniam, Shanmughamoorthy and S.R. Setia for the Respondents.

The following Order of the Court was delivered :

Delay condoned.

Leave granted.

A notification under section 4(1) of the Land Acquisition Act, 1894 (for short, 'the Act') was published in the State Gazette on July 26, 1978.

An enquiry under section SA of the Act was made followed by a declaration under section 6 of the Act, published on June 3, 1980. The Amendment Act 68 of 1984 came into force with effect from September 24, 1984.

The Land Acquisition Collector made his award on September 22, 1986.

The possession was taken on November 24, 1986. It would appear that in respect of Survey No. 2/11, a further award was made on 31st August, 1990.

The respondents filed a writ petition under Article 226 of the Con- G stitution in the High Court in 1987 challenging the validity of the notification under section 4(1) and the declaration under section 6 of the Act on the ground of delay in making the declaration. The learned single Judge in his qrder dated September 15, 1987, dismissed the writ petition on the ground of laches. The Division Bench following the judgment of this Court H in State f Tamil Nadu and Anr. v. A. Mohammed Yousef and Ors., [1991]

4 sec 224, allowed the writ petition holding that the scheme was vague A and it quashed the notification published under section 4(1) and declaration under section 6 of the Act on that basis. Since the controversy on the question of vagueness and the failure to make the scheme was already considered by a Bench of three Judges of this Court in State of Tamil Nadu & Ors. Etc. v. L. Krishnan & Ors. Etc., JT (1995) 8 SC 1, on 1st November, 1995, the judgment of the Division Bench can no longer be sustained.

Shri S. Sivasubramaniam, learned senior counsel appearing for the respondents contended that the Government having excluded the lands u survey Nos. 197/2 etc. (which is marked 'A' in the plan submitted by the respondents) and the lands covered in Survey No. 95/1 to an extent of one C acre and four cents marked as 'B' in the same plan, the respondents are also entitled to the exclusion of their land and the non-exclusion thereof amounts to invidious discrimination. It is also further contended that in the year 1976-1980 three G.Os. viz., MS No. 837 Housing dated June 15, 1976, Ms. No. 413 Housing and U.D. dated 3rd March, 1979 and MS No. 57 D Housing a UD dated January 12, 1980 having excluded some lands, the respondents' lands, which form part of the scheme, also need to be excluded and, therefore, non-exclusion of the land marked 'G' in the plan filed by them amounts to arbitrary exercise of power conferred under sections 4(1) and 6 of the Act and is violative of Article 14 of the Constitution. It is also further contended that the lands in Survey Nos. 2/5, E 2/11 and 2/12 were situated in Alegapuram Pudur Village and having realised that these lands were not covered under the initial notification under section 4(1), the errata having covered those lands, the notification must be deemed to have been published after the errata was published.

Thereafter, no separate enquiry under Section 5A was conducted. A F declaration made under section 6 of the Act without conducting enquiry under Section 5A is invalid in law. Notices under section 9 and 10 of the Act were served on 120 persons in a single day including a dead person.

So service was not a valid one and the award under section 11 was non est.

It is also contended that the appellants having physically remained in G possession of the lands, the Panchnama by Land Acquisition of taking possession and handing it over to the Housing Board is also illegal. It is further contended from 1978 till the date of making the award in 1990, the respondents were denied enjoyment of the lands. Therefore, the delay itself would be a ground to set aside the award. Alternatively, it is contended that they should be compensated considerably by awarding interest there- H

A under. Mr. C.S. Vaidyanathan, the learned senior counsel appearing for the appellants resisted these contentions.

Having considered the respective contentions of the counsel for the parties, we see no force in any of the contention raised by Shri Sivasubramaniam. It is true that the lands marked 'A' and 'B' as per the respondents' plan appear to have been excluded. It would appear that as regards the land marked 'A', there is a litigation pending. As regards the land marked 'B', it appears to be far interior and we do not have any material, on the basis of which exemption came to be made. It is difficult for us to go into the validity or the purpose. The circumstances or reasons for which the exemption came to be made to the land of an extent of one acre and four cents covered in Survey No. 195/1 etc. are also not available on record. With regard to the lands marked 'C' and 'D', it is seen that it was the Reference Court who excluded these lands, which is subject matter of appeals pending in the High Court. The exclusion of those lands cannot D be a ground that the lands marked 'G' which are the subject matter in these appeal have also to be excluded.

It is seen that in first two GOs, referred to earlier, the Government laid down guidelines for exclusion of lands which are the subject matter of lay out approved by the Housing Board. The Government having realised E the fault in issuing the above guidelines, thereafter issued order in G.O.

No. 583 dated March 11, 1983 of the Housing and Urban Development Department withdrawing all the guidelines issued in the GOs referred to above with immediate effect. Thus, it could be seen that the Government itself having realised the misapplication of the guidelines laid by it and F disastrous effect' on the execution of the Housing Schemes prepared by Housing Board or entrusted to it by government or local authorities, it withdrew the GOs with immediate effect. It is seen that respondents' lands is abutting the road Omluer to Salem and practically it would be the gate way to the scheme. Under those circumstances, if the lands are excluded from the scheme, the entire scheme gets frustrated. Under those cir- G cumstances, we do not find any justification to direct the government for exclusion of the lands on the above grounds.

It is true that the Government having realised that the lands were initially notified to be acquired but did not cover the Survey Nos. being H situated in the adjacent villages, the errata notification was published and

included to lands in Survey Nos. 2/5, 2/11 and 2/12. Once errata was A published, it dates back to the date of initial section 4(1) notification, namely June 26, 1978. It cannot be considered to be a fresh notification issued under section 4(1). It is not in dispute that the respondents, in fact, filed their objects to the notice issued under section SA and Rule 3 of the Rules made by the State Government. Shri Sivasubramaniam, is unable to place before us the nature of the objections raised by the respondentpetitioners. But the fact remains that the respondents had the opportunity

and, in fact, they did participate in section SA enquiry. Therefore, the declaration made under section 6 does not get vitiated.

It is well settled law that publication of the declaration lHl.der section C 6 gives conclusiveness to public purpose. Award was made on September 26, 1986 and for Survey No. 2/11 award was made on August 31, 1990.

Possession having already been undertaken on November 24, 1981, it stands vested in the State under section 16 of the Act free from all encumbrances and thereby the Government acquired absolute title to the land. The initial D award having been made within two years under section 11 of the Act, the fact that subsequent award was made on 31st August, 1990 does not render the initial award invalid. It is also to be seen that there is stay of dispossession. Once there is stay of dispossession, all further proceedings necessarily could not be proceeded with as laid down by this Court. Therefore, the limitation also does not stand as an impediment as provided in the E proviso to section llA of the Act. Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under section 11 does not become invalid. Award is only an offer on behalf of the State. If compensation was accepted without protest, it binds such party but subject to F section 28A. Possession of the acquired land would be taken only by way of a memorandum, Panchanama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under section 16 divested in the illegal occupant. Considered from this perspective, we G hold that the High Court was not justified in interfering with the award.

Delay in making the first award is compensated by award of additional amount under section 23(1A) and interest under section 28 of the Act as amended by Act 68 of 1984 which has taken care to set off the delay H

A in making the award. Under these circumstances, the respondents are adequately compensated for loss, if any, for denial of enjoying the lands from the date of taking possession till date of deposit.

Considered from these perspective, we are of the view that the order of the High Court made in Writ Appeal No. 1884 of 1987 on March 18, B 1993 requires interference. It is accordingly set aside and the order of the learned single Judge stands restored.

The appeals are allowed accordingly. The writ petitions stand dismissed Parties are directed to bear their own costs .

B.K.M. ..

Appeals allowed.