The first writ petition, viz., W.P.No.38688 of 2002, came up for hearing on 17.12.2008, arguments were heard and orders were reserved. Subsequently, it was brought to the notice that the very same petitioners have also filed another writ petition being W.P.No.41421 of 2002 and that was listed on 19.12.2008. In that writ petition also, arguments were heard and orders were reserved. Since both the writ petitions were filed by the same petitioners in respect of the same cause of action, they were grouped together and a common order is being passed.
2. The first writ petition is filed against
Section 4(1) notification issued by the District Collector, Madurai, dated 09.8.2002 notifying the acquisition of the land belonging to the petitioners in Survey No.15/3B, Chintamani Village, Madurai (South) Taluk, Madurai District for the purpose of providing house-sites to the Adi-dravidars. It is stated by the petitioners that the notification had not specified the names of beneficiaries.
3. It is also stated that a proper enquiry was not conducted in terms of
Section 4(3)(b). It is also stated that the availability of other lands belonging to the Government was not explored and already vast lands have been acquired. Since the land in question has to be divided among six persons (now eight persons after impleading the L.R.s of the deceased first petitioner), who are the petitioners, very limited extent of lands will be available to each of them. Further, the offer of an alternative land was not considered.
4. The most relevant objection raised therein was that the Central Act 1 of 1894, apart from the market value, provides for 30% solatium and also interest at the rate of 15% for the first year and thereafter at 9% till the payment or deposit is made. Apart from that,
Section 23(1)(A) of the Central Act provides for an additional amount at 12%, which is also not provided. Since the purpose of the Central Act and the State Act is the same, viz., acquiring the land of a person for public purpose, the amount of compensation should not vary depending upon the legislation under which the lands are acquired.
5. The first writ petition was admitted on 11.10.2002. This Court restrained the respondents from handing over the land to the beneficiaries pending the writ petition.
6. A counter affidavit dated 'nil' (2002) was filed by the third respondent justifying the acquisition. It was stated that due notice was given under
Section 4(2) to the land owners and their objections were recorded on the basis of their representations. Since the objection raised by the petitioners largely related to acquisition of wet lands, proposals were sent to the Government. The Government had granted approval for the acquisition of 1.00.10 Hectares of wet lands by G.O.Ms.No.70, SC and ST Welfare (LA) Department, dated 05.8.2002. The proposal sent by the third respondent Special Tahsildar on 20.7.1998 was approved by the District Collector after he made an inspection of the place on 25.3.2000. Thereafter,
Section 4(1) notification was published in the Madurai District Gazette on 09.8.2002. After conducting an Award Enquiry on 24.10.2002 before any further steps could be taken, the petitioners have moved this Court and have obtained an interim order on 11.10.2002. A reply affidavit dated 20.7.2007 was filed by the legal representatives. Once again, the petitioners in the reply had stated that the identification of the real beneficiaries was not done and, therefore, the proceedings were vitiated.
7. Mr.A.Sivaji, learned counsel for the petitioners submitted that since the petitioners thought that they have not specifically challenged the vires of
Section 7(2) and Section 12 of the Tamil Nadu Act 31 of 1978 with reference to compensation not keeping in tune with the Central Act, they have subsequently challenged the same in the second writ petition. In that writ petition (W.P.No.41421 of 2002), the prayer is for a declaration that
Sections 7(2) and 12 of the Tamil Nadu Act 31 of 1978 are illegal, unconstitutional and violative of Articles 14 and 19 of the Constitution. The petitioners are consequently entitled to get solatium at the rate of 30%, additional compensation at the rate of 12%, and interest at the rate of 15% for the first year and at 9% thereafter as provided under the Central Act 1 of 1894.
8. In the second writ petition, only notice was ordered on 19.12.2002. The prayer for an interim order was rejected on 17.9.2003. Pursuant to the notice, a counter affidavit dated 'nil' was also filed by the third respondent.
9. It must be stated that a Division Bench of this Court by its judgment, summary of which is reported in 1996 LW 48 (Annathai Ammal and others -vs- State of Tamil Nadu and others), held the Tamil Nadu Act 31 of 1978 as unconstitutional. Even during the course of the arguments in that case, the issue relating to discriminatory compensation paid under the State Act was never raised. The only attack was against Section 11, which provides for compensation amount to be paid in instalments, was illegal.
10. The matter was taken to the Supreme Court by the State of Tamil Nadu. The Supreme Court upheld the provisions of this Act vide its judgment in State of Tamil Nadu and others -vs- Ananthi Ammal and others reported in (1995) 1 SCC 519. The Supreme Court had upheld all the provisions of the Act except Section 11 relating to payment of compensation in instalments. The Supreme Court also found the argument advanced by the land owners by comparing the various provisions under the State Act and that of the Central Act. It was opined that such a comparison was impermissible and the Act does not suffer from the vice of
Article 14 of the Constitution. A reference may be made to the following passages found in paragraphs 6 and 7:-
''6. In State of M.P. v. G.C. Mandawar (AIR 1954 SC 493) a Constitution Bench held that
Article 14 does not authorise the striking down of the law of one State on the ground that, in contrast with the law of another State on the same subject, its provisions are discriminatory, nor does it contemplate the law of the Centre or of a State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two. The sources of authority for the two being different,
Article 14 can have no application. In Sant Lal Bharti v. State of Punjab (1988) 1 SCC 366 this was reiterated.
7. When a statute is impugned under
Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis."
11. With reference to Section 7 of the T.N.Act 31 of 1978, the following passages found in paragraphs 10 and 12 may be worth quoting :-
''10.
Section 7 states that the amount payable in respect of land that is acquired under the said Act shall be the market value of such land on the date of publication of the notice under sub-section (1) of Section 4. What is payable as compensation is the market value of the land and it is to be determined as on the date on which the notice under
Section 4(1) is published. To that extent the provisions of the said Act are more favourable than those of the Land Acquisition Act for, under that statute, market value as on the date of the
Section 4 notification is payable, not on the date of the
Section 6 notification.
12. Sub-section (1) of
Section 7, as aforesaid, states that the amount payable in respect of the land that is acquired under the said Act shall be its market value on the date of publication of the notice under
Section 4(1). Sub-section (2) of
Section 7 states that, in addition to the market value of the land, the prescribed authority shall in every case award a sum of 15 per centum on such market value as solatium in consideration of the compulsory nature of the acquisition. Sub-section (3) of
Section 7 states that the prescribed authority shall, after holding an inquiry in the prescribed manner, determine by order the amount payable under sub-section (1) and a copy of the said order shall be communicated to the owner of such land and every person interested therein. The purport of
Section 7, read as a whole, is that the market value of the land is payable as compensation and sub-section (3) states that the market value shall be determined after holding an inquiry in the prescribed manner. Necessarily, that enquiry contemplates notice to the owner and other persons interested in the land and consideration of their claims for compensation and the basis thereof, namely, the evidence they adduce. Upon determination of the market value of the land after inquiry, the prescribed authority is obliged under sub-section (2) of
Section 7 to award as compensation for the acquisition the market value and an additional 15% as solatium.
(Exphasis Added)
12. After upholding the legislation, it was observed in paragraph 19 thus:-
''19. In the result, we do not find the provisions of the said Act, except for the provision as to instalments in
Section 11, violative of the provisions of
Article 14 of the Constitution of India. It is, therefore, unnecessary to consider whether or not the said Act has the protection of
Article 31-C of the Constitution.'' (Emphasis Added)
13. Notwithstanding the decision of the Supreme Court, the learned counsel for the petitioners insisted on contending that the Supreme Court's decision requires reconsideration as it had not taken into account the decision of a Seven Judges' Bench of the Supreme Court in Nagpur Improvement Trust and another -vs- Vithal Rao and others reported in (1973) 1 SCC 500. The learned counsel placed reliance upon paragraphs 29 to 32, which may be reproduced below:-
''29. Can classification be made on the basis of the public purpose for the purpose of compensation for which land is acquired? In other words can the Legislature lay down different principles of compensation for lands acquired say for a hospital or a school or a Government building? Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other.
Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under
Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classification be made on the basis of the authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.
30. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14.
31. It was said that if this is the true position the State would find it impossible to clear slums, to do various other laudable things. If this argument were to be accepted it would be totally destructive of the protection given by
Article 14. It would enable the State to have one law for acquiring lands for hospital, one law for acquiring lands for schools, one law acquiring lands for clearing slums, another for acquiring lands for Government buildings; one for acquiring lands in New Delhi and another for acquiring lands in Old Delhi. It was said that in many cases, the value of the land has increased not because of any effort by the owner but because of the general development of the city in which the land is situated. There is no doubt that this is so, but
Article 14 prohibits the expropriation of the unearned increment of one owner while leaving his neighbour untouched. The neighbour could sell his land and reap the unearned increment. If the object of the legislation is to tax unearned increment it should be done throughout the State. The State cannot achieve this object piece meal by compulsory acquisition of land of some owners leaving others alone. If the object is to clear slums it cannot be done at the expense of the owners whose lands are acquired, unless as we have said the owners are directly benefited by the scheme. If the object is to build hospitals it cannot be done at the expense of the owners of the land which is acquired. The hospital, schools etc. must be built at the expense of the whole community.
32. It will not be denied that a statute cannot tax some owners of land leaving untaxed others equally situated. If the owners of the land cannot be taxed differently how can some owners be indirectly taxed by way of compulsory acquisition? It is urged that if this were the law it will tie the hands of the State in undertaking social reforms. We do not agree. There is nothing in the Constitution which debars the State from bettering the lot of millions of our citizens. For instance there is nothing to bar the State from taxing unearned increment if the object is to deny owners the full benefit of increase of value due to development of a town. It seems to us, as we have already said, that to accede to the contentions of the appellant and the States would be destructive of the protection afforded by
Article 14 of the Constitution. The States would only have to constitute separate acquiring bodies for each city, or Division or indeed to achieve one special public purpose and lay down different principles of compensation".
14. Therefore, the learned counsel wanted to argue that the judgment in Ananthi Ammal's case, (cited supra) was decided only by a Three Judges' Bench and it had omitted to consider the larger Bench judgment in Nagpur Improvement Trust case, (cited supra), this Court can go into the question of discriminatory compensation paid under the State enactment.
15. In this context, it is necessary to refer to the recent decision of the Division Bench, to which I (K.Chandru, J.) am a party, wherein this Court rejected similar contentions raised by another land owner. In that decision, (K.Rakkianna Gounder -vs- State of Tamil Nadu (W.A.No.1263 of 2008 dated 11.12.2008), speaking for the Division Bench, A.K.Ganguly, C.J. (as he then was) observed as follows:-
''6. This Court is unable to accept the said submission. When the constitutional validity of the Act was dealt with by the Supreme Court and when the said Act has been upheld, including
Section 9 which is challenged here, a further writ petition cannot be entertained on any ground which was not urged before the Hon'ble Supreme Court. Such a contention is not known to law.
7. Apart from that the judgment of the Supreme Court on a constitutional question, where the Supreme Court declares the law viz., the said Act, is valid is binding on all the Courts in India including this Court. The said judgment of the Supreme Court in Ananthi Ammal's case (cited supra) is the binding judgment and those questions cannot be reopened by this Court at all."
16. The learned counsel made a passing reference to the decision of the Supreme Court in P.T.Munichikkanna Reddy and others -vs- Revamma and others reported in (2007) 6 SCC 59 and contended that the Courts have now regarded the ''right to property'' as a human right. He also placed reliance upon the decision of the learned Single Bench of the Karnataka High Court in Lalita and another -vs- Union of India and others reported in AIR 2003 Karnataka 165, wherein the Karnataka High Court held the National Highways Act in not providing a similar compensation under the Central Act 1 of 1894 as unconstitutional. In that case, the Karnataka High Court dealt with the scope of
Section 3(j) of the National Highways Act excluding the provisions of Central Act 1 of 1894 which was held to be unconstitutional and the land owners were directed to be paid additional market value under Section 23(1)A, solatium under
Section 23(2) and interest under
Section 28. However, this Court expresses its inability to go behind the Supreme Court's order in Ananthi Ammal's case (cited supra).
17. Further, reliance was placed upon a judgment of a Division Bench, wherein comparative provisions of two enactments were considered and certain observations were made by the Division Bench of this Court in T.V.Angappan -vs- State of Tamil Nadu reported in (2006) 3 MLJ 1073.
18. The arguments of the learned counsel with reference to the vires of the Tamil Nadu Act 31 of 1978 may look attractive but that is not a ground for this Court to ignore the law of precedents and deviate from the principles of stare decisis. The unreported judgment of the Division Bench of this Court wherein identical contentions have been raised was rejected to which this Court is also a party and it cannot ignore the same and proceed as if the larger Bench judgment of the Nagpur Improvement Trust Case (cited supra) is binding and Ananthi Ammal's case should be re-considered. Hence, the writ petition in W.P.No.41421 of 2002 is liable to be dismissed.
19. However, with reference to the first writ petition, the arguments raised by the petitioners with reference to the non-consideration of their objections cannot be accepted. To the objection that the wet lands were being acquired by the respondents, it must be stated that necessary permission had already been obtained from the State Government vide G.O.Ms.No.70, dated 05.3.2002. With reference to the other objection, when the list of beneficiaries has not been shown, it must be stated that the Act does not require any such notice. In the present case, the notification under
section 4(1) clearly states that the lands were required for the purpose of providing house-sites to Adi-dravidars of the Village. Thereafter, it is not necessary to give the list of beneficiaries either along with the notification or to supply such a copy to the petitioners.
20. Another argument was advanced that since wet land has been acquired as per the Government Order in extant, prior approval of the Government was not obtained. First of all, the said G.O. is only a guideline and does not form part of the T.N.Act 31 of 1978. Under the said Act, there is no bar for acquiring the wet lands. In any event, even assuming that there was a provision relating to prior approval, in the present case, as stated already, the approval of the Government had also been obtained.
21. The question whether a prior approval is a must under the provisions of the Land Acquisition Act and whether not obtaining prior approval will invalidate an action of land acquisition even if it is shown that there was post approval, came up for consideration before the Supreme Court in U.P.Avas Evam Vikas Parishad and another -vs- Friends Co-op.Housing Society Limited and another reported in 1995 Supp (3) SCC 456. It is relevant to refer to paragraphs 5 to 7, which read as follows:-
''5. It is to be seen that the language employed therein is that the approval of the State Government is necessary. Question is whether it would be prior approval or approval given subsequent to the notification under
Section 28 or declaration under
Section 32 is valid in law. If prior approval would have been a precondition for further steps, the Act would have said so. This not having been done, it seems to us what is material is to obtain approval of the State Government. The reason appears to be that when the schemes have been framed, the land suitably required for effective implementation of the scheme alone should be acquired and not in excess in the guise of framing the schemes.
6. This Court in Life Insurance Corpn. of India v. Escorts Ltd (1986) 1 SCC 264, considering the distinction between special permission and general permission, previous approval or prior approval in para 63 held that: We are conscious that the word prior or previous may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into
Section 29(1) of the Act. Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act. As to the word approval in
Section 33(2)(b) of the Industrial Disputes Act, it was stated in Lord Krishna Textiles Mills Ltd. v. Workmen (AIR 1961 SC 860), that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in
Section 33(1).7. It is seen that the approval envisaged under Exception (iii) of Section 59(1)(a), is to enable the Parishad to proceed further in implementation of the scheme framed by the Board. Until approval is given by the Government, the Board may not effectively implement the scheme. Nevertheless, once the approval is given, all the previous acts done or actions taken in anticipation of the approval get validated and the publications made under the Act thereby become valid."
Hence, the argument regarding approval by the Government also does not merit consideration.
22. In the light of the above, both the writ petitions fail and accordingly they will stand dismissed. However, there will be no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed.
js To
1. The Secretary to Government, Social Welfare Department, Fort St.George, Chennai-9.
2. The District Collector, Madurai.
3. The Special Tahsildar (LA), Adi Dravidar Welfare, Unit-I, Madurai.
4. The Secretary to Government, Law Department, Fort St.George, Chennai 9