C M XAVIER Vs. LAND ACQUISITION OFFICER
LAWS(KER)-1974-9-20
HIGH COURT OF KERALA
Decided on September 30,1974

C.M. XAVIER Appellant
VERSUS
LAND ACQUISITION OFFICER Respondents

JUDGEMENT

- (1.) IN this writ petition, the petitioners seek a declaration that S. 34 (1) and S. 34 (2) (a) of the Town Planning Act, 1108, are ultra vires the Constitution of INdia, and also the quashing of all proceedings for acquisition of 0. 1255 hectares of land in Survey No. 342/2 and 0. 7568 hectres of land in Survey No. 343/1 of Ernakulam village for Kaloor Town planning Scheme in pursuance of the notification published in Kerala Gazette dated 29 71964 under S. 8 of the Town Planning Act, and G. O. (MS)106/71/lad dated 21-7-1971 published in Kerala Gazette dated 24-8-1971 under S. 12 of the said Act.
(2.) THE brief facts necessary to be noted are as follows:-THE petitioner is the owner of 1. 43 acres of land in Survey No. 343/1 and 342/2 in Ernakulam village. Two years prior to the formation of the corporation of Cochin, the predecessor-in-interest of the Corporation of cochin, viz. , the Municipal Council, Cochin, passed a resolution in terms or s. 7 of the Town Planning Act, for the preparation of a scheme for the development of areas comprising Survey Nos. 343/1 and 342/2 etc. in Ernakulam village. This resolution passed by the Municipal Council on 14 71964 appeared in the Kerala Gazette dated 27-8-1964 as a publication under S. 8 of the Town planning Act. As contemplated under S. 9 of the Act, within the two years of the publication of the resolution aforementioned, the Municipal Council prepared the Scheme called the "kaloor Town Planning Scheme" and published the same in the gazette dated 5-7-1966. Between the date of publication of resolution as per S. 8 on the one hand, and the preparation of the draft scheme as per S. 9 on the other, the joint Town Planning Committee for Greater Cochin was formed, and steps coming within the purview of the Town Planning Act were undertaken by the Committee. After considering objections and suggestions called for in respect of the Scheme published as per S. 9 the Government by order dated 2171971 sanctioned the Scheme and the said" order was published in the Gazette dated 24 81971 in terms of S. 12 of the Act. Subsequent to events aforementioned, at the instance of the Town Planning Trust, the first respondent herein viz. , the Land Acquisition Officer, Special Tahsildar (L. A.), cochin Town Planning Trust, Ernakulam, served on the petitioners Ext. P1 notice as per S. 9 (3) of the Kerala Land Acquisition Act, 1960, hereinafter called the "acquisition Act", for taking possession of 31 cents of land in survey No. 342/2, included in the Scheme and proposed to be acquired. Another item of property, viz. , 1. 12 acres in Survey No. 343/1 belonging to the petitioners was also proposed to be acquired. THE petitioners claim compensation in respect of these lands. For the lands proposed to be acquired as per the Scheme in terms of S. 34 (2) (a) of the Town Planning Act, the land acquisition authority is to determine the compensation on the market value of the land at the date of publication of the notification under S. 8 or S. 10 as the case may be. In terms of this Section the Land Acquisition Authority, has to adopt the market value as on 28 71964, the date of publication of resolution as per S. 8 for determining compensation payable to land proposed to be acquired from the petitioners and several others. For the acquisition as per the provisions of the Town Planning Act, the acquiring authority is also not obliged to give the owner of land 15% solatium as in the Land Acquisition Act, by virtue of S. 34 (1) of the Act. THE determination of the compensation basing on market value as on the date of publication of resolution under S. 8 is very much detrimental to the rights of the petitioner to hold and possess property. The Act under which the acquisition is sought to be made was known, originally, as the Travancore Town Planning Regulation, regulation. 4 of 1102. By the amending Act 31 of 1960 it has been amended to read as the Town Planning Act. It has in its amended form application throughout the State of Kerala except to areas comprised in the erstwhile malabar area. S. 7 provides for the Municipal Council, by resolution, to decide to prepare a scheme in respect of any land, within the municipal area, or in its vicinity outside such area, or to adopt with or without modifications a draft scheme proposed by all or any of the owners of any such land. S. 8 requires such resolution passed under S. 7 to be published by notification in the prescribed manner by the Chairman of the Municipal Council. S. 9 provides for the publication of the draft scheme and S. 12 provides sanctioning of Scheme by government with or without any modification to the original draft scheme submitted by the Municipal Council. S. 12 (3) reads as follows: " (3 ). Our Government, after considering the objection's and suggestions, if any, and making such enquiry as they think fit, sanction the scheme with or without modifications, or may refuse to sanction the scheme or may return the scheme to the council for reconsideration" Sub-s. 5 of S. 12 requires the sanction of the Scheme to be published by a notification in the Government Gazette. Other relevant provisions to be noticed are the provisions contained in Chapter VII particularly Ss. 32 to 34. S. 32 provides that immovable property required for the purposes of town-planning Scheme shall be deemed to be land needed for a purpose within the meaning of the Land Acquisition Act, XI of 1089, and may be acquired under the said Act modified in the manner provided in that Chapter. S. 33 lays down as follows: "33. Notification under S. 12 to have effect as declaration under S. 6 of the Land Acquisition Act: Notwithstanding anything in the Land Acquisition Act XI of 1089, a notification under S. 12 shall operate in respect of any land required for the purpose of the Scheme as a declaration under S. 6 of the said Act and no further declaration be necessary, but it shall not be incumbent on Our Government or Officer authorised in that behalf to make immediate steps for the acquisition of such lands: Provided that if the land is not acquired within three years from the date of the notification, it shall cease to have effect as a declaration under S. 6 of the Land Acquisition Act, XI of 1089". S. 34 (1) and S. 34 (2) (a) read as follows: "34. S. 14, 22 and 23 of the Land Acquisition (Act)superseded (1) The provisions of S. 14, 22 and 23 of the Land acquisition (Act), XI of 1089, shall have no application in the acquisition of property for the purpose of this (Act ). (2) In determining the amount of compensation to be awarded for land acquired under the said (Act) for such purposes the Division peishkar and the court shall take into consideration (a) the market value of the land at the date of publication of the notification under S. 8 or S. 10 as the case may be. " Sri. P. C. Chacko, the counsel for the petitioners submits that the provisions contained in S. 34 (1) and S. 34 (2) (a) of the Town planning Act 1108 are violative of the petitioners' right to acquire and hold property and is discriminatory in as much as persons similarly situated are sought to be treated differently. It is pointed out that by the elimination of the provisions of S. 23 of the Land Acquisition Act 11 of 1089 which corresponds to S. 25 of the provisions contained in the Kerala Land Acquisition Act 1961, the right of the petitioners to claim and receives solatium is taken away. The further contention of the counsel is that though in the instant case the resolution under S. 7 was passed and the notification thereof published under s. 8, as early as on 28 71964, the publication under S. 12 (5) was effected only on 24 81971, nearly after 7 years from the date of the publication of the resolution. It may also be noted that notice under S. 9 (3) of the Kerala Land acquisition Act 16 of 1961 was made only on 911973 as could be seen from Ext. P1.
(3.) THE purpose of the acquisition whether made under the kerala Land Acquisition Act or the Town Planning Act is the same, namely for a public purpose. THE acquisition is made by the Government whether it is under the Kerala Land Acquisition Act or under the Town Planning Act. THE question is whether the classification of the owners from whom the acquisition is made could be discriminatory. It is a well settled principle that classification should be based on intelligible differentia and it must have a nexus to the object sought to be achieved. I do not find any reasonable basis for making the distinction between those whose properties are sought to be acquired under the kerala Land Acquisition Act on the one hand, and those whose properties proposed to be acquired under the Town Planning Act on the other, as the object in both the cases is acquisition of property for public purpose. It has been held by the Supreme Court while construing the provisions of the Nagpur improvement Trust Act that there should not be discrimination in regard to the applicability of the provisions under which the persons from whom properties are acquired and who claimed the compensation. In Para. 27 of the said judgment (AIR. 1973 S. C. 689) in Nagpur Improvement Trust and another v. Vithal Rao and others it is stated thus: "27. 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 would enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Art. 14. ", In a still later case (AIR. 1974 SC. 1202) in Om prakash and another v. State of U. P. and others while construing the provisions of U. P. Nagar Mahapalika Adhiniyam Act 2 of 1959 it has been observed in Para. 16 of the judgment as follows: "there can be no dispute that the Government can acquire land for a public purpose including that of the Mahapalika or other local body, either under the unmodified land Acquisition Act, 1894, or under that Act as modified by the Adhiniyam. If it chooses the first course, then the land owners concerned will be entitled to better compensation, including 15 percent solatium; the potential value of the land, etc. ; nor will there be any impediment or hurdle such as that enacted by S. 372 (1) of the Adhiniyam in the way of such land owners, dissatisfied by the Collector's award to approach the court under S. 18 of that Act. If the Government, for the same purpose, resorts to the Land Acquisition Act as modified by the Adhiniyam, the land-owner (s)concerned will suffer from all the disabilities or restrictions envisaged by the modifications. In this way, the impugned legislation enables the Government to discriminate in the matter of acquiring land between similarly situated landowners. " The main grievance of the petitioners is that by resorting to the Town Planning Act the petitioners are deprived of solatium which is otherwise eligible under S. 25 (2) of the Kerala Land Acquisition Act. Secondly it took more than 7 years from the date of the publication under S. 8 of the resolution passed under S. 7 for effecting the publication of the sanction of the scheme under S. 12 (5), and that in the meanwhile the value of the money had fallen considerably and the value of the property in terms of money had enhanced to a large extent. The benefit of the appreciation in value of the property is denied to them by valuing the property as on the date of publication of the scheme under S. 8 or 10, as the case may be, as laid down by s. 34 (2) (a) of the Act. I find much force in these grounds. In the light of the decisions of the Supreme Court, already referred to, these provisions have to be held as discriminatory and violative of Art. 14 of the Constitution of india.;


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