@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashThe 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 u/s 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 Ors.
v. State of Tamil Nadu and Ors.), 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, . 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 The State of Madhya Pradesh Vs. G.C. Mandawar, 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 Vs. State of
Punjab, 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 u/s 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 u/s 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, . 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 v. 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, 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 Anr. v. Union of India and Ors. 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 u/s 23(1)A,
solatium u/s 23(2) and interest u/s 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 and T.V.Subramanian Vs. The State of Tamilnadu and
Others, .
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 u/s 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 Anr. v. Friends Co-op. Housing Society Limited and Anr. 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 u/s 28 or declaration u/s 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 Corporation of India Vs. Escorts Ltd. and Others, , 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 The Lord
Krishna Textile Mills Vs. Its Workmen, , 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.
