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PETITIONER: STATE OF TAMIL NADU & ORS.ETC.

       Vs.

RESPONDENT: L.KRISHN N & ORS.ETC.

DATE OF JUDGMENT01/11/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  497            1996 SCC  (1) 250  JT 1995 (8)     1        1995 SCALE  (6)221

ACT:

HEADNOTE:

JUDGMENT:                       J U D G E M E N T B.P. JEEVAN REDDY.J.      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

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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

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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

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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

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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

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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

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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

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    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

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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)

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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 uptil  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

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    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

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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

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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

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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

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    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

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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.

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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.