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PETITIONER: STATE OF TAMIL NADU & ANR. ETC.

       Vs.

RESPONDENT: MAHALAKSHMI AMMAL & ORS. ETC.

DATE OF JUDGMENT16/11/1995

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

CITATION:  1996 AIR  866            1996 SCC  (7) 269  JT 1995 (9)   271        1995 SCALE  (7)118

ACT:

HEADNOTE:

JUDGMENT: WITH                CIVIL APPEAL NO. 11556 OF 1995          (Arising out of SLP (C) No. 21318 of 1995)                          O R D E R      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 5A  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  filled a  writ petition  under Article 226  of   the  Constitution   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  order  dated  September  15,  1987, dismissed the  writ petition  on the  ground of  laces.  The Division Bench following the judgment of this Court in State of Tamil  Nadu and  Anr. vs.  A.  Mohammed  Yusuf  and  Ors. [(1991) 4  SCC 224],  allowed the writ petition holding that the  scheme  was  vague  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. vs. 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

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appearing for  the respondents contended that the Government having excluded  the lands  in 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 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  & U.D.  dated 3rd March, 1979 and MS No.57 Housing & UD dated January 12, 1980 having excluded some lands, the respondent’s 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, 2/11 and 2/12 were situated in Alagapuram Pudur  Village and  having  realized  that  these lands were  not covered under the initial notification under Section 4(1),  the notification  must be deemed to have been published after  the errata  was published.  Thereafter,  no separate  enquiry   under  Section   5A  was   conducted.  A 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  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 thereunder.  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 be a ground that the lands marked ‘G’ which are  the subject  matter in these appeals 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 realized the fault in issuing the  above guidelines,  thereafter issued  order  in G.O.No.583 dated  March 11,  1983 of  the Housing  and Urban

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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 realized the misapplication of  the guidelines  laid by it and 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 circumstances,  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 realized 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 to lands  in Survey  Nos.2/5, 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 5A 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 respondent-petitioners. But the fact remains  that the  respondents had the opportunity and, in  fact,  they  did  participate  in  Section  5A  enquiry. Therefore, the declaration made under Section 6 does not get vitiated.      It  is   well  settled  law  that  publication  of  the declaration under  Section 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 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  proviso to  Section 11A 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 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 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

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taken care  to set  off the delay 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 perspectives, we are of the view that the order of the High Court made in Writ Appeal No.1884 of 1987  on March  18, 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.