LAND ACQUISITION OFFICER Vs. XAVIER

JUDGEMENT

(1.) These four appeals are against the judgments of two learned Judges of this Court, Writ Appeal No. 59 of 1975 is against the judgment of Bhaskaran, J.; Writ Appeal Nos. 194 of 1975, 253 of 1975 and 310 of 1975, are against the judgments of Chandrasekhara Menon, J, The challenge in these appeals is to the constitutionality of certain provisions of the Town Planning Act. Writ Appeal No. 59 of 1975 is by the State against the decision in O.P. No. 3844 of 1973; Writ Appeal Nos. 194 and 310 of 1975 are against the judgment in O.P. No. 2865 of 1974, the former by the Cochin Town Planning Trust and the latter by the State. Writ Appeal No. 253 of 1975 is against O.P. No: 1317 of 1974 and the appellant is the Cochin Town Planning Trust.

(2.) The learned Judges who decided the writ petitions held the provisions of S.34(1) and 34(2)(a) of the Town Planning Act as unconstitutional and have struck down the said provisions. The correctness of that view has been canvassed in these appeals.

(3.) The decision of the learned Judge who decided O.P. No. 3844 of 1973 against which W A. No. 59 of 1975 has been preferred is reported in Xavier v. Land Acquisition Officer 1974 KLT 843 . Shortly stated the attack raised against S.34(1) and 34(2)(a) of the Town Planning Act is that these provisions sanction a mode of acquisition which operates more harshly on the claimants than the provisions of the Land Acquisition Act; and as there are no guidelines as to which set of provisions is to be followed for purposes of acquisition, and under what circumstances the one is to be resorted to in preference to the other, the conferment of an arbitrary power on the Government to choose between the two modes of acquisition was unconstitutional To that effect there are two rulings of the Supreme Court, namely, (1) Nagpur Improvement Trust v. Vithal Rao AIR 1973 SC 689 and (2) Om Prakash v. State of UP. AIR 1974 SC 1202 . In both these cases, two principal disparities between the Land Acquisition Act and the City Improvement Trust Act or the Town Planning Act, were stressed, viz., the absence of provision for payment of solatium in the Improvement Trust or Town Planning Act and he sanctioning of different principles for determining compensation Thus in the Nagpur Improvement Trust case AIR 1973 SC 689, the compensation was payable not on the market value of the land as such, but on the market value of the use of the land. In Om Prakash's case AIR 1974 SC 1202 also the provisions of the two Acts were such that the one was more favourable to the landholders than the other, and there were no guidelines as to when the one and when the other, was to be resorted to On the strength of these decisions, we think the learned Judges were right in holding that the concerned provisions were discriminatory The two essential respects in which an acquisition under the Town Planning Act operates more prejudicially than an requisition under the Land Acquisition Act, are: (1) that there is no liability to pay the 15 per cent of the market value as solatium to the claimants as in the case of an acquisition under the Land Acquisition Act; and (2) under the Land Acquisition Act, especially after its amendment, a point of time of not more than two years from the S.3 notification had been fixed for the issuance of the S.6 declaration This was essentially to speed up the land acquisition proceedings on the one hand, and also to see that the land value which had been frozen by S.3 notification did not get prejudicially affected by any long delay in the acquisition proceedings. But this requirement that there should not be any appreciable time lag between the initial notification and declaration of a public purpose, is not to be found in the Town Planning Act; with the result that the land value having been frozen by the first notification, the proceedings might drag their feet before completion. No guidelines have been furnished as to when the provisions of the Town Planning Act are to be resorted to, and when the provisions of the Land Acquisition Act are to be put into operation. On the two decisions of the Supreme Court referred to earlier, there is little difficulty for us to hold that the provisions of the Town Planning Act are discriminatory The learned Advocate General very strenuously contended that the time element or the time lag between the two notifications is not a matter pertaining to principle of compensation and only the applicability of a different principle of compensation in the Town Planning Act from what was enunciated in the Land Acquisition Act had been frowned upon by the Supreme Court in the two decisions noticed. Attention was called to Vajravelu Mudaliar's case AIR 1965 SC 1817 and to Bella Banerjee's case AIR 1934 SC 190 and Feejeebhoy's case AIR 1965 SC 1896 , in all of which cases, it was said, stress was laid on the adoption of different principles of compensation. The time element is not to be taken in the abstract, but is integrally linked up with the payment of compensation, in the sense that, the land value having been frozen on a particular date, expeditious processing of the land acquisition proceedings is meant to ensure that the claimant is not deprived of just compensation by the rapidly surging prices since the date of the S.3 notification. The absence of such a provision in the Town Planning Act is prejudicial, and is a matter pertaining to ascertainment of principles of compensation.