WEB JOURNAL/LAND ACQUISITION

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A Comment on Municipal Corporation of Greater Bombay v. the Industrial Development and Investment Company Pvt. Ltd.1

by Dr Arun Kumar Barthakur*
Cite as : (2002) PL WebJour 5

Before discussing the case under comment it is necessary to explore the relevant provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act") and their interrelationship with the Land Acquisition Act, 1894 (for short "the LA Act"). The MRTP Act was enacted by the State Legislature with the object of planning the development and use of land in regions by establishing Regional Planning Boards, New Town Development Authorities and Special Planning Authorities, as the case may be, for notified areas. The MRTP Act, therefore, inter alia, makes provisions for preparation of development plans, appointment of Special Planning Authorities for notified areas, and creation of new towns for designated areas by means of development authorities. The MRTP Act also makes provision for the compulsory acquisition of land required for public purposes in respect of the plans and for purpose connected therewith.

The MRTP Act lays down an exhaustive procedure for preparation of the regional plan by a Regional Planning Board and development plan by any planning authority. The Regional Planning Board is required to follow the procedure contained in Chapter II(C). Section 16, inter alia, provides that every Regional Board shall, after carrying out the necessary surveys and preparing an existing landuse map of the region prepare a draft regional plan and publish a notice thereof in the Official Gazette and in such other manner as may be prescribed, inviting objections and suggestions, if any, from any person with respect to the draft plan. The Regional Planning Board is required to refer the objections, suggestions and representations received by it to the Regional Planning Committee appointed under Section 10 for consideration and report. The Regional Planning Committee, after giving a reasonable opportunity of being heard to the affected persons shall submit its report to the Regional Planning Board. Thereafter, the Regional Planning Board shall prepare the regional plan after considering the suggestions, objections and representations and the report of the Regional Planning Committee, and submit the same to the State Government for approval. On approval of the plan by the State Government in the manner provided under Section 15, the final regional plan is required to be published under Section 17.

Chapter III deals with the procedure of preparation of development plan by a planning authority. Section 23 provides that the planning authority shall make a declaration of its intention to prepare such a plan and publish the same in the Official Gazette, and also in one or more local newspapers in the prescribed manner, inviting suggestions or objections from the public within a period of not less than sixty days from the publication of the notice in the Official Gazette. Thereafter, under Section 26 the planning authority is required to prepare a draft development plan, not later than two years from the date of notice published under Section 23, and publish a notice in the Official Gazette and in such other manner stating that the development plan has been prepared, once again inviting objections or suggestions from any person with respect to the draft plan within a period of sixty days from the notice. Section 27 provides that the planning authority shall have regard to, and guided by the proposals made in the regional plan, and shall not carry out any modification therein without prior concurrence of the Regional Planning Board. Section 28 enjoins the planning authority to consider suggestions or objections received by it under Section 26(1) and give a reasonable opportunity of being heard to any person including the representatives of the Government who may have filed any objections or suggestions, and thereafter modify or change the plan in such manner, as provided under Section 28(4).

Section 29 further provides for modification of the draft development plan, which is of substantial nature. This requires a planning authority or the Town Planning Officer to publish a notice in the Official Gazette and also in the local newspapers inviting objections and suggestions from any person with respect to the proposed modification not later than sixty days from the date of such notice. The section then requires the authority concerned to consider all objections and suggestions received by it and give a reasonable opportunity of being heard to any person including representatives of government departments who may have filed any objections or made any suggestions in respect of the draft development plan before making such modifications or changes in the draft development plan. Section 30 enjoins the planning authority to submit the draft plan to the State Government for approval within twelve months from the date of publication of the notice under Section 26 that the draft plan has been prepared. Section 31 provides that the State Government may, after consulting the Director of Town Planning by notification in the Official Gazette, sanction the draft development plan submitted to it for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may consider proper, or return the draft development plan to the planning authority for modifying the plan as it may direct, or refuse to accord sanction. It further provides that where the modifications proposed to be made by the State Government are of a substantial nature, the State Government has to follow the procedure contemplated under Section 28 to give reasonable opportunity of hearing to the objectors before finalizing the modification.

Section 37 confers power on a planning authority to carry out such modification in a final development plan as will not change its character. This power could be exercised by a planning authority after publishing a notice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice. This section also enjoins the planning authority to serve notice on all persons affected by the proposed modification and, after giving a hearing to any such persons, submit the proposed modification (with amendments, if any) to the State Government for sanction.

Section 40 provides for appointment of a Special Planning Authority for developing certain notified areas, and clause (c) of sub-section (1) thereof provides that the State Government may by notification in the Official Gazette appoint Bombay Metropolitan Region Development Authority (BMRDA) established under the Bombay Metropolitan Region Development Authority Act, 1974 to be the Special Planning Authority for developing any undeveloped area specified in the notification as a notified area. Implications of constituting BMRDA as the Special Planning Authority would be best understood by reference to Section 115:

"115. Planning and control in notified area.-(1) A Special Planning Authority shall from time to time, submit to the State Government its proposals for the development of land being land either belonging to, or vesting in it or acquired or proposed to be acquired under Section 116, and the State Government may, after consultation with the Director of Town Planning, approve such proposals either with or without modification.

(2) Before submitting the proposals to the State Government, the Special Planning Authority shall carry out a survey and prepare an existing land-use map of the area, and prepare and publish the draft proposals for the lands within its jurisdiction together with a notice in the Official Gazette and local newspapers in such manner as the Special Planning Authority may determine, inviting objections and suggestions from the public within a period of not more than thirty days from the date of notice in the Official Gazette. The Special Planning Authority may, if it thinks, give individual notice to persons affected by the draft proposals.

(3) The Special Planning Authority may after duly considering the objections or suggestions, received by it, if any, and after giving an opportunity to the persons affected by such draft proposals of being heard modify its proposals, if necessary, and then submit to the State Government for its approval. The orders of the State Government approving such proposals shall be published in the Official Gazette."2       (emphasis supplied)

Section 116 then lays down that a Special Planning Authority shall have all the powers of a planning authority as provided in Chapter VII of the MRTP Act for the special purpose of acquisition of such land in the notified area either by agreement or under the LA Act.

Chapter VII of the MRTP Act provides for acquisition of land required for public purposes. Section 125 provides that any land required, reserved or designated in a regional plan, development plan or town planning scheme for a public purpose or purposes including plans for any area of comprehensive development or for any new town shall be deemed to be land needed for a public purpose within the meaning of the LA Act. This is further made clear by the provisions of Section 126:

"126. Acquisition of land required for public purposes specified in plans.-(1) When after the publication of a draft regional plan, a development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the planning authority, development authority, or as the case may be, any appropriate authority may, except as otherwise provided in Section 113-A, acquire the land either by agreement, or make an application to the State Government for acquiring such land under the Land Acquisition Act, 1894.

(2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or if the State Government (except in cases falling under Section 49 and except as provided in Section 113-A) itself is of opinion that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in Section 6 of the Land Acquisition Act, 1894 (1 of 1894), in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section:

Provided that no such declaration shall be made after the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan."3

In the scheme of the MRTP Act there is no need for publication of a fresh notification under Section 4(1),4 and giving an opportunity of hearing contemplated under Section 5-A of the LA Act because under Section 126 a planning authority or a development authority can only acquire land which is already specified or reserved for a public purpose in any draft regional plan, a development plan or any other plan or town planning scheme already prepared. As we have seen above, a detailed procedure has been contemplated by Sections 16, 17, 21, 22, 23, 26, 28, 29 and 31, or 115, as the case may be, of the MRTP Act leading to the State Government arriving at the satisfaction under Section 126(2) that the land specified in the application made under sub-section (1) thereof is needed for a public purpose.

Let us now explore the provisions of Sections 4 and 5-A of the LA Act. Under Section 4 the State Government is enjoined to publish a notice in the Official Gazette whenever it considers that land in any locality is needed or likely to be needed for a public purpose, stating therein, inter alia, the purpose for which it is needed, its area, and, if a plan has been made of the land, the place where such plan may be inspected. Under Section 5-A(1) any interested person is entitled to file objections to the acquisition of the land to the Collector within 30 days from the date of publication of the notification, and show that the land proposed to be acquired is not suitable for the specified public purpose, that it is excessive etc. Sub-section (2) requires the Collector to give the objector an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader. Thereafter the Collector is enjoined to make a report in respect of the land to the appropriate government containing his recommendations on the objections, together with the record of the proceedings held by him. Section 6(1) then provides that the appropriate government is required to be satisfied, after considering the report, if any5, made under Section 5-A(2) that the particular land is needed for a public purpose. The object of Section 5-A was spelt out in the Statement of Objects and Reasons of the Bill introducing the Land Acquisition Amendment Act (Act 38 of 1923) whereby Section 5-A was enacted, which in material part runs thus:

"... The object of this Bill is to provide that a local Government shall not declare, under Section 6 of the Act, that any land is needed for a public purpose unless time has been allowed after the notification under Section 4 for persons interested in the land to put in objections and for such objections to be considered by the local Government."

In Nandeshwar Prasad v. U.P. Govt.6 the Supreme Court ruled that the provisions of Section 5-A were wholly mandatory, and that, as a consequence, the appropriate government would have no jurisdiction, under the usual procedure, to make the declaration without the requisite report of the Collector provided under Section 5-A(2). As such, it is patent that without the report of the Collector made under Section 5-A, the appropriate government cannot form the satisfaction whether or not the particular land is needed for a public purpose. Section 6(1) further provides that after arriving at such satisfaction, the State Government shall make a declaration that the land is required for a public purpose specified therein under the signature of a Secretary to such Government or of some officer duly authorized to certify its order. The declaration is then required to be published under sub-section (2) in the Official Gazette and in two newspapers circulating in the locality. On publication of the declaration under Section 6(2) the Collector is enjoined under Section 7 to take order from the appropriate government for the acquisition of the land for the public purpose specified in the declaration.

It will thus be seen from our discussion above that the procedure contemplated by Sections 16, 17, 23, 26, 28 and 29, or 115, as the case may be, and Section 31 of the MRTP Act read with Section 126(1) leading to formation of satisfaction of the Government under Section 126(2) that the land specified in the application made under sub-section (1) thereof is needed for a public purpose is analogous to - rather more rigorous than - the procedure contemplated under Sections 4 and 5-A of the LA Act leading to formation of satisfaction by the Government under Section 6(1) of the LA Act.

It should also be noted that once the public purpose of acquiring a land, which is specified in a plan prepared under the MRTP Act, is declared by a notification published under Section 6(2) of the LA Act read with Section 126(2) of the MRTP Act, neither the planning authority nor the State Government can carry out any modification in the user of such land at their own sweet will in midstream during the pendency of the acquisition proceedings. For a change in the declared public purpose of the land can be effected only by following the prescribed procedure contemplated under Section 37 in case of a final plan and under Section 29 or 31 in case of a draft plan. As such, if the public purpose is changed midstream, it would be unauthorized for the Government to continue with the proceedings for acquisition of the land, inasmuch as the satisfaction earlier arrived at by the Government under Section 126(2) of the MRTP Act as to the public purpose of acquiring the land before making the declaration under Section 6(2) of the LA Act, is no longer efficacious. In such an event, first it would be necessary for the planning authority concerned to complete the procedure under Section 29, or 31, or 37 of the MRTP Act, as may be applicable, and thereafter initiate fresh proceedings under Section 126(1).

This statutory position under the MRTP Act is not very different from the settled position in this regard under the LA Act emerging from case-law produced by various High Courts. In Gadadhar Ghosh v. State of W.B.7 a Division Bench of the Calcutta High Court held as follows:

"From the scheme of the Act it is amply clear that in arriving at the satisfaction as to whether private property must be compulsorily acquired for a public purpose, there must be a fixity of purpose in the mind of the Government, because it is in relation to that purpose that the Government explores and arrives at its satisfaction. Prima facie, the Government is the best judge as to whether an acquisition is for a public purpose. But it is not the sole judge. Courts have the jurisdiction and it is their duty to determine whenever a question is raised whether an acquisition is or is not for a public purpose...."8

Similarly, a Division Bench of the Delhi High Court in Union of India v. Nand Kishore9 held as follows:

"33. Satisfaction of the Government, however subjective it may be, cannot be transferred from one public purpose to another public purpose. There can be no transferred satisfaction. If the named purpose declared in Section 6(2) is not adhered to for any reason the lands must go out of the grasping hands of the taker. The reason for non-adherence may be change of mind, fulfilment of purpose, abandonment or frustration."10

The ratio of the above decisions was followed by the Division Bench of the Bombay High Court in Industrial Development & Investment Co. (P) Ltd. v. State of Maharashtra11 In this case, the Municipal Corporation of Greater Bombay initiated acquisition proceedings for City Survey No. 503 situate at Dharavi, Bombay, by making an application to the State Government under Section 126(1) of the MRTP Act. In the sanctioned development plan of the Corporation this plot was reserved for the public purpose of extension of the Dharavi Sewerage Purification Works. The State Government of Maharashtra published the declaration on 6-7-1972 under Section 6(2) of the LA Act read with Section 126(2) of the MRTP Act for acquiring the land for the said public purpose. The appellant was a tenant of a portion of this plot. The Land Acquisition Officer made the award on 24-2-1983 and apportioned a sum of Rs 3278 as compensation to the appellant in respect of its interest in the land as a tenant. Thereafter, from a public notice dated 26-5-1983 published in The Times of India the appellant came to know for the first time that the public purpose, as specified in the notification under Section 6 had been abandoned and changed in the year 1979. The appellant's inquiry revealed that on 31-3-1977 the State Government had appointed BMRDA as the Special Planning Authority under Section 40(1)(c) of the MRTP Act for Kurla Taluk. Pursuant to it, BMRDA had prepared a fresh development plan for Bandra-Kurla Complex by deleting the reservation of Survey No. 503 for extension of Dharavi Sewerage Purification Works, and redesignating it for residential, commercial and semi-commercial use. The State Government sanctioned this modified proposal by a notification dated 19-4-1979 published in the Official Gazette on 3-5-1979. However, prior to effecting the modification in the plan neither the Corporation nor the Land Acquisition Officer had intimated the interested persons about any proposal for changing the user of the said land. On 4-7-1983 the appellants filed a writ petition before the High Court which was dismissed by the learned Single Judge on the ground of delay. The petitioners thereupon preferred a letters patent appeal before the Division Bench of Mookerjee, C.J., and Bharucha, J., (as he then was). Mookerjee, C.J., speaking for the Bench observed as follows:

"In our view, the appellants are right in contending that the public purpose specified in a declaration under Section 6 Land Acquisition Act not only must be real and not illusory at the date the said declaration is published but the purpose must continue to subsist until the land proposed to be acquired vests in the State in terms of Section 16 or 17 Land Acquisition Act as the case might be. In the event the purpose specified in the declaration under Section 6 is altered or it ceases to exist, there would be no further jurisdiction to continue the proceedings for acquiring for such a non-existent purpose. ... An award under Section 11 Land Acquisition Act, is a consequential proceeding to the making of a valid declaration under Section 6 of the said Act. ... By reason of the declaration under Section 6 Land Acquisition Act losing its legal force, the jurisdiction to proceed with the acquisition ceased and all further proceedings including making of the award and taking of possession would be void and without jurisdiction. The act subsequent to the disappearance of the purpose specified in the declaration under Section 6 was ultra vires or beyond the jurisdiction and, therefore, invalid and not merely voidable."12

The Municipal Corporation of Greater Bombay thereupon took the matter to the Supreme Court, giving rise to the decision under comment. The substantial question of law for decision was whether the public purpose for which the land is acquired must continue to subsist until the land vests in the State under Section 16 or 17 of the LA Act. Ramaswamy, J., in his judgment reasoned that if the public purpose of the acquired land specified in the plan sanctioned under the MRTP Act is snapped off, prior to the completion of acquisition proceedings initiated via Section 126(2) of the MRTP Act the entire acquisition proceedings under Section 126 would become incompetent, but such is not the case of acquisition under the LA Act simpliciter. However, His Lordship added that if the purpose was changed before vesting of the land under the MRTP Act, as long as the acquired land is utilized for any newly designated public purpose the acquisition would be proper. In contrast, Majmudar, J., in his separate judgment answered the question in the affirmative without making any such distinction. They concurred only on one point: the delay of 4 years in filing the writ petition from the date of changing the public purpose by the State Government, and accordingly on the ground of limitation the judgment and order of the Division Bench of the Bombay High Court came to be set aside. Let us now discuss the divergent views of Their Lordships. Ramaswamy, J., observed: (SCC para 10)

"10. It has to be kept in view that Section 126 sub-section (1) of the MRTP Act is a substitute for Section 4 notification under the Act. Once a proposal for acquisition of land earmarked in development plan for a specified public purpose is moved by the planning authority as per Section 126(1), on acceptance of such proposal by the State Government a notification under Section 126(2) read with Section 6 of the Act gets issued. It has to be appreciated that as there is no provision for notification under Section 4 of the Act for such acquisition under the MRTP Act, no Section 5-A enquiry under the Land Acquisition Act is contemplated under the MRTP Act."13       (emphasis supplied)

It is submitted, with respect, that Ramaswamy, J., was wrong in holding that Section 126(1) of the MRTP Act is a substitute for Section 4 of the LA Act, inasmuch as Section 126(1) does not provide for any of the formalities, prescribed by Section 4 of the LA Act. Contrary to this, as discussed above, the procedure contemplated by the MRTP Act under Sections 16, 17, 23, 26, 28, 29, or 115, as the case may be, and Section 31, is analogous to - rather more rigorous than - the procedure contemplated under Sections 4 and 5-A of the LA Act. In fact, the notification constituting the development authority for a new town, or declaring the notified area for a Special Planning Authority, or publishing the interim plan, the draft plan etc., in other case, can be said to be the substitute for the notification under Section 4 of the LA Act, inasmuch as under the provisions of Section 126(3)(iii) of the MRTP Act the relevant date for valuation of the land is the date of publication of such notification. For the same reason, the observation of Ramaswamy, J., with respect, that the MRTP Act does not contemplate publication of a notification as contemplated by Section 4 nor any inquiry as contemplated by Section 5-A of the LA Act, though technically correct, is not an adequate explanation of the scheme of the MRTP Act in this regard. Ramaswamy, J., had also observed:

"It would thus, appear that the scheme of acquisition of earmarked land under the plan for a specified public purpose thereunder, is a complete scheme or code under the MRTP Act. It is a distinct and independent scheme as compared to general scheme of acquisition under the Land Acquisition Act."14

With respect, this observation is erroneous. It will be seen from our discussion of the relevant provisions of the MRTP Act that though the MRTP Act contains a complete procedure for preparation of development plan and the holding of an inquiry before specifying the user and public purpose of land included in the plan, it does not contain any independent machinery or provisions for acquisition of land. The legislature has, therefore, adopted the provisions of the LA Act by reference for the purpose of acquisition of land under Section 126 of the MRTP Act. The only difference in acquisition of land initiated via the MRTP Act vis-a-vis the LA Act is that in the MRTP Act the legislature has done away with the requirement of publication of the notification under Section 4, and holding an inquiry under Section 5-A of the LA Act for the obvious reason that this requirement has been sufficiently taken care of by the analogous provisions in Sections 16, 17, 23, 26, 28, 29, or 115, as the case may be, and Section 31 of the MRTP Act read with sub-section (3) of Section 126. However, except for the provisions of Section 126(1) under which a planning authority could apply to the State Government to acquire a land, sub-sections (3) and (4) thereof for determining the relevant date for valuation of the land, and Section 129 under which a planning authority could apply to the State Government for taking possession of the land in case of urgency, the MRTP Act does not have any of the provisions required for taking the gamut of proceedings for acquisition of land e.g. for holding an enquiry for determining the area and the value of the land, and the apportionment of the compensation among the interested persons, for reference from the award made by the Collector and the guidelines to be followed by the Collector for determining the market value, payment of interest on the market value and solatium etc. As such, once the declaration is made by the State Government under Section 6 of the LA Act read with Section 126(2) of the MRTP Act the provisions of the LA Act, mutatis mutandis, shall apply to such acquisition. In this respect, therefore, the LA Act is supplemental to the MRTP Act because unless the LA Act supplements the MRTP Act, the latter cannot function insofar as acquisition of land reserved for public purpose in a plan is concerned. It is, therefore, clear that the MRTP Act cannot be construed to be a complete code for acquisition of land15

Ramaswamy, J., also referred to Section 128 of the MRTP Act. This section authorizes the State Government to acquire any land included in any plan or scheme of a planning authority for a public purpose different from the purpose designated in the plan by applying the provisions of the LA Act notwithstanding anything contained in the MRTP Act. In such acquisition proceedings the planning authority concerned shall be deemed to be a person interested in the land acquired. The only difference in acquisition under Section 128 vis-a-vis acquisition under Section 126 is that under Section 128 it would be necessary to issue the notification under Section 4 of the LA Act. The reason for this is that the gamut of proceedings completed under Sections 16, 17, 23, 26, 28, 29, or 115, as the case may be, and Section 31 of the MRTP Act, which are analogous to - rather more rigorous than - the provisions of Sections 4 and 5-A of the LA Act - are no longer efficacious, inasmuch as the land is now being acquired by the State Government for a public purpose distinct from the purpose for which it was reserved in the plan prepared under the MRTP Act.

However, Ramaswamy, J., came to the conclusion (SCC para 12) "that acquisition as per Section 126 stands on an entirely different footing as compared to acquisition of any land for any public purpose as per the general law of land acquisition, namely, the Land Acquisition Act, 1894"16 His Lordship further observed:

"An exercise of eminent domain derives its efficacy from the reservation, specification or designation for public purpose of the land concerned as found in the development plan itself. If this nexus or linkage between the specification etc. of public purpose in the plan and the land concerned which is sought to be acquired under the MRTP Act is snapped off, prior to the completion of acquisition proceedings as per Section 126(2) of the MRTP Act, the entire edifice of acquisition proceedings under Section 126 would crumble down and the acquisition under that section would become incompetent. Such is not the case of acquisition under the Act simpliciter, which has to start after issue of Section 4 notification. Consequently, by considering the statutory scheme of acquisition under Section 126 of the MRTP Act, general principle of acquisition under the Act cannot be applied wholesale for deciding the legality of such statutory acquisition under the special scheme of MRTP Act."17       (emphasis supplied)

It is submitted with respect that while the first part of the above observation is true, it is difficult to see any logic in the italicized portion of this observation. If this rule is applied it would lead to constitutionally unacceptable results: let us take for example, two adjoining plots, each belonging to two different persons, reserved for public purposes in the plan of a planning authority constituted under the MRTP Act. Let us suppose, one plot is being acquired via the provisions of Section 126 of the MRTP Act, and the other is being acquired by the State Government for a public purpose different from the one earmarked in the plan by initiating acquisition proceedings under Section 4 of the LA Act read with Section 128 of the MRTP Act. After making the declarations, assume that both the planning authority and the State Government have changed the specified public purpose of acquisition of the plots before taking their possession. As per the law declared by Ramaswamy, J., while the edifice of acquisition proceedings for the first plot under Section 126(2) would crumble down, the proceedings under the LA Act for the second plot would not be affected. In the result, the owner of the first plot would be entitled to deal with his plot to his advantage the way he likes, and if the planning authority once again decides to acquire the plot by initiating acquisition proceedings under Section 126(1) of the MRTP Act - which shall of course be after completing the procedure prescribed under Section 28 or 29 or 31, as the case may be, in case of draft plan, or Section 37 in case of final plan - a fresh declaration under Section 126(2) of the MRTP Act read with Section 6(1) of the LA Act has to be made, in which event the owner of the first plot would be entitled to receive the market value of the land prevailing on the date of publication of the declaration under Section 6(2) in the Official Gazette18 - which would be normally higher owing to efflux of time - while the owner of the second plot has to reconcile with the market value prevailing on the date of publication of the notification under Section 4(1) of the LA Act. As such, whichever way one looks at it the owner of the first plot would get a better treatment at the hands of the Government compared to the owner of the second plot. This will constitute an invidious and hostile discrimination against the owner of the second plot. Will such a classification of persons based on whether the MRTP Act or the LA Act is applied to acquire land, pass the objective test mandated by Article 14 of the Constitution? It is submitted that such a classification is not founded on any intelligible differentia, nor has such a differentia a rational nexus with the object sought to be achieved, namely, compulsory acquisition of land for a public purpose19 This view is supported by the decision of the seven-Judge Constitution Bench in Nagpur Improvement Trust v. Vithal Rao20 where Sikri, C.J., ruled thus:

"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."21

It is submitted, therefore, that once the State Government initiates the acquisition proceedings under the LA Act, then on there could be no difference to the footing of acquisition of the land and its implications: the proceedings shall be governed by the provisions of the LA Act simpliciter, irrespective of whether the acquisition proceedings were initiated via Section 126(1) of the MRTP Act or directly under the LA Act, inasmuch as it does not matter to the owner whether the land is acquired under one Act or the other.

Moreover, in case of acquisition initiated under the LA Act simpliciter, in the normal case, once the State Government having formed a satisfaction - after considering the report made by the Collector under Section 5-A of the LA Act - makes the declaration of the public purpose for acquiring the land under Section 6(1) of the LA Act, it cannot transfer its satisfaction from the declared public purpose to another public purpose. Otherwise, the mandatory provisions of Section 5-A and Section 6(1) would be rendered otiose and meaningless. This being the settled legal position, emerging from case-law discussed above, it is difficult to accept the proposition that the public purpose specified in the declaration under Section 6 must subsist until vesting of title by taking possession of the land only when the acquisition was initiated via Section 126 of the Town Planning Act, and not when initiated directly under the LA Act simpliciter. Similarly, when the urgency provisions are invoked under Section 17 of the LA Act, it is settled that the Government must apply its mind for forming the satisfaction as to the existence of urgency22 for acquiring the land for the specified public purpose, and therefore, after publishing the declaration under Section 6(2) read with Section 17 it would be impermissible for the Government to acquire the land for a different public purpose, as otherwise it be a mockery and colourable exercise of the urgency provisions.

Ramaswamy, J., then observed that after BMRDA deleted the reservation of the land for extension of the Dharavi Sewerage Plant - being the purpose earlier specified in the Corporation's plan - and redesignated it for residential-cum-commercial purpose in the newly approved plan published in the Government Gazette dated 3-5-1979, "ordinarily efficacy of the notification under Section 126(2) qua this land got extinguished and the specified public purpose resultantly died down"23 (SCC para 14). But having said this, Ramaswamy, J., with respect appears to have made an about-turn: he ruled that only if the newly designated purpose of the land in the subsequent plan of BMRDA did not subserve any public purpose, and if it was redesignated for any private purpose further acquisition would be illegal, unless title had vested in the Government under Section 16 or 1724 of the LA Act. His Lordship observed:

"Nonetheless the acquired land could be used by the Corporation for residential-cum-commercial purpose for its employees other than those working in the Sewage Purification Plant. It would not, therefore, be necessary that the original public purpose should continue to exist till the award was made and possession taken. Nor is it the duty of the Land Acquisition Officer to see whether the public purpose continues to subsist. The award and possession taken do not become invalid or ultra vires the power of the Land Acquisition Officer."25       (emphasis supplied)

In so ruling, Ramaswamy, J., with respect, seems to have unwittingly presumed that the planning authority can change the user of the land from one public purpose to another at its sweet will without affecting the scheme of the MRTP Act. However, as we have discussed above, if a planning authority intends to effect any modification in a development plan it has to perforce follow the gamut of procedure provided under Section 37 of the MRTP Act in case of final plan and under Section 28 or 29 or 31, as the case may be, in case of a draft plan. It is therefore submitted that consequent upon the modification of the development plan, the satisfaction earlier formed by the State Government under Section 126(2) for acquisition of the land for the public purpose specified in the earlier plan loses its meaning and efficacy. There cannot be transfer of satisfaction of the Government, however subjective, from one purpose to another. Otherwise, the provisions of Section 37, or Section 28 or 29 or 31, as the case may be, and sub-section (2) of Section 126 of the MRTP Act would be rendered brutam fulmen and otiose, having no utility. Such cannot be the object of the legislation. In such a case, therefore, the planning authority has to initiate fresh proceedings under Section 126(1) of the MRTP Act. It is therefore respectfully submitted that Ramaswamy, J., erred in ruling that the land being acquired under the MRTP Act for one public purpose could be diverted to another public purpose before completion of acquisition, and that there is no need for the original public purpose to continue to exist till the award is made and possession is taken.

Majmudar, J., with respect, in his separate and short judgment rightly disagreed with Ramaswamy, J., on this point. Majmudar, J., observed: (SCC p. 521, paras 32-33)

"32. However, I may mention at this stage that observation made by my learned Brother K. Ramaswamy, J., in connection with utilization of land acquired under the Maharashtra Regional and Town Planning Act (hereinafter referred to as the 'MRTP Act') for one public purpose to be used for another public purpose, are with great respect not found by me to be apposite. I, therefore, record my reasons for the said view.

33. Even though the proposal under Section 126(1) is for acquisition of land for a specified public purpose, if the planning authority wants to acquire the land subsequently for any other public purpose earmarked in the modified scheme as has happened in the present case, that is, if the appellant Corporation which had initially proposed to acquire the land for extension of sewerage treatment plant wanted subsequently to acquire the same land for its staff quarters then such a purpose must be specifically indicated in the plan meaning thereby that the land must be shown to be reserved for the staff quarters of the Corporation and then the Special Planning Authority which had become the appropriate planning authority i.e. BMRDA, would be required to issue a fresh proposal under Section 126(1) read with Section 40(3)(e) and Section 116 of the MRTP Act and follow the gamut thereafter. So long as that was not done the earlier proposal under Section 126(1) and the consequential notification by the State Government under Section 126(2) which had lost their efficacy could not be revitalized."       (emphasis supplied)

Ramaswamy, J., also held that Section 91 of the BMC Act statutorily applies to the acquisition of the land, and that under sub-section (2) of Section 91 of the BMC Act on payment of compensation by the Corporation to the Land Acquisition Officer, the acquired property statutorily vested in the Corporation free from all encumbrances. He, therefore, held that the title of the land having vested in the Corporation free from all encumbrances by operation of Section 91(2) of the Bombay Municipal Corporation Act, the acquisition proceedings became final. With respect, it is not understood how Ramaswamy, J., could harness the provisions of Section 91 of the BMC Act. In the instant case the land in question was acquired under Section 126 of the MRTP Act. As discussed above, once the declaration under Section 6 of the LA Act is published by the State Government, the provisions of the LA Act alone shall apply to the acquisition of the land, and the title has to vest in the State Government under Section 16 of the LA Act. Therefore, there can be no question of any of the provisions of the BMC Act being at all applicable to the instant case. Moreover, on appointment of BMRDA as the Special Planning Authority under Section 40(1)(c) for the Dharavi area, which included Survey No. 503, it alone was authorized under Section 115(1) to submit to the State Government its proposals for the development of land in the notified area which is "being land either belonging to, or vesting in it or acquired or proposed to be acquired under Section 116" of the MRTP Act. As a consequence, as Majmudar, J., with respect has rightly ruled, BMC lost its locus standi to continue further with the acquisition of the plot initiated under Section 126, as in its place BMRDA alone was vested with the power of acquiring the land in the notified area by Section 116 of the MRTP Act. As such, Section 91 of the BMC Act was not at all relevant, and there was no question of the land vesting in the Corporation by virtue of Section 91(2) of the BMC Act.

One more point needs consideration. In the instant case, Survey No. 503 neither belonged to, nor vested in BMRDA, nor acquired or proposed to be acquired by it under Section 116 of the MRTP Act. This being the fact situation, BMRDA, ex facie, had no authority to submit to the State Government its proposals for the development of the land without first initiating acquisition proceedings for the land under Section 116 read with Section 126(1) of the MRTP Act. But its proposal in this regard came to be sanctioned by the State Government on 19-4-1979, and a notification in this regard was published in the Official Gazette on 3-5-1979, though as recorded in the judgment of the High Court no evidence was brought on record to show that the affected persons were served individual notice of the proposed modification of the plan or they were being heard, as mandatorily required by sub-sections (2) and (3) of Section 115. The whole exercise, therefore, prima facie appears to be ultra vires Sections 115 and 116 of the MRTP Act.

Ramaswamy, J., further observed that the Land Acquisition Officer took symbolic possession of the land from the landowner, without confuting the finding of the High Court in this regard. In the judgment of the High Court Mookerjee, C.J., had observed: (AIR para 6)

"In the first place, there is nothing on record to show that possession under Section 16 was taken from the appellants who, according to the award under Section 11, were tenants of the land and had erected certain structures and for which they were awarded compensation."26       (emphasis supplied)

It is settled law that possession contemplated under Section 16 of the LA Act has to be actual, physical and permanent possession: it cannot be symbolic possession resorted to with the help of a panchnama. It is a common complaint - not without justification - that such panchnamas are, in practice, mechanically drawn by a Revenue Officer usually obtaining signatures of stock witnesses very often even without going over the land. In the instant case, not even such a panchnama was produced before the Court. The observation of Ramaswamy, J., is also contrary to the decision of the three-Judge Bench of the Supreme Court in Balwant Narayan Bhagde v. M.D. Bhagwat27 wherein Bhagwati, J., (as he then was), delivering his concurring judgment (for himself and Gupta, J.,) with Untwalia, J., ruled thus:

"We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking 'symbolical possession' in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough."28       (emphasis supplied)

It is submitted that the three-Judge Bench decision in Balwant Narayan Bhagde27 was binding on the latter two-Judge Bench presided over by Ramaswamy, J. As such, the rule laid down by Ramaswamy, J., in this regard being per incuriam is not a good law.

Ramaswamy, J., also held that a tenant has no right to question the acquisition when the landlord himself had accepted the award and received compensation.29 With respect, this observation of Ramaswamy, J., is inconsistent with his earlier observation that the validity of the notification can be impugned by the interested persons30, inasmuch as a tenant is necessarily an interested person. This view also appears to be wrong when tested against various provisions of the Act. Section 3(b) defines the expression "person interested" as follows:

"3. (b) The expression 'person interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land;"

Under Section 5-A any person interested in the land is authorized to object to the acquisition of the land within thirty days from the date of the publication of the notification under Section 4(1). Similarly, under Section 9 the Collector is enjoined to serve notice on all persons interested in the land to appear personally or by agent before the Collector. Now if any interested person is authorized by Section 5-A to object to the acquisition, there is no reason why a tenant cannot challenge the acquisition proceedings. It is to be appreciated that a tenant who has been in possession for a long time is entitled to continue in possession of the tenanted premises, subject to his paying the monthly rents and such a tenant can be rarely evicted. As such, if such a property is acquired the landowner would be too happy to pocket the compensation without challenging the acquisition.

Moreover, it is clear that acquisition of a property always works prejudice to a tenant's interest in the acquired property, making him an aggrieved party to the acquisition proceedings. In Black's Law Dictionary, 6th Edn., at p. 65, the expression "aggrieved party" has been defined to mean:

"One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word 'aggrieved' refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation."

Again, Black's Law Dictionary, at p. 1405 gives the following meaning to the expression "standing to sue":

" 'Standing to sue' means that party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. ... The requirement of 'standing' is satisfied if it can be said that the plaintiff has a legally protectible and tangible interest at stake in the litigation."

In the instant case, the respondent Company, which was a tenant in the acquired land, invested its substantial funds in erecting certain structures thereon. It had, therefore, a legally protectible and tangible interest at stake in the acquired land. Its right to the tenanted premises was divested by the acquisition proceedings. As such, its standing to sue the Municipal Corporation or challenge the acquisition proceedings cannot be denied. This view is supported by the decision of the seven-Judge Constitution Bench of the Apex Court in Nagpur Improvement Trust20 where a tenant of the acquired land challenged the acquisition proceedings on the ground that the Nagpur Improvement Trust Act under which the land was acquired made a hostile discrimination against him by offering a compensation which is lower than what would otherwise have been payable to him if the land had been acquired under the Land Acquisition Act. The Apex Court upheld this contention of the tenant. This case is therefore an authority that a tenant has the locus standi to question the acquisition proceedings.

With respect, therefore, Majmudar, J., rightly disagreed with Ramaswamy, J., on this point, when he observed:

"I also do not subscribe to the general observation that a sitting tenant of the land which comes to be subjected to acquisition proceedings under Sections 4 and 6 of the Land Acquisition Act, in no case can challenge the said acquisition proceedings. In appropriate cases such a challenge can be levelled by the tenant concerned having sufficient subsisting interest in the land. In my view, therefore, on merits the learned Single Judge as well as the Division Bench had rightly held that the respondents' writ petition had good case on merits."31       (emphasis supplied)

Ramaswamy, J., also held the writ petition to be not maintainable on the ground of laches. He observed:

"The respondents, admittedly, approached the High Court after a delay of 4 years; that too after award was made and possession was taken from the owner. It is seen that the declaration (sic notification sanctioning the modified proposal) was published as long back as on 3-5-1979. Earlier to that after the draft plan was published, notice was given to all the parties. The respondents, who claimed to be the tenants, had not raised the little finger in making any objection to the proposed scheme or the revised plan. The award was made on 24-2-1983; possession was taken on 4-3-1983, and on the same day it stood transferred to the BMC. The writ petition came to be filed thereafter on 4-7-1983. The learned Single Judge dismissed the writ petition on the ground of laches."32

It is respectfully submitted that this observation of Ramaswamy, J., is contrary to the facts noticed in the judgment of the High Court, where Mookerjee, C.J., had observed: (AIR para 5)

"In our view, the writ petition was not liable to fail on the ground of delay. We have already mentioned that there was nothing on record to indicate that after the appellants had filed their claims pursuant to the notice under Section 9 Land Acquisition Act, ... any intimation or notice was actually served by the respondents upon the appellants bringing to their knowledge that there had been modification of the development plan. ... Therefore, we are unable to subscribe to the view that there was undue delay in filing the writ petition or that the cause of action occurred in the year 1979."33       (emphasis supplied)

It is also clear from the facts that the appellants for the first time came to know of the revision of the development plan for Bandra-Kurla Complex from a public notice dated 26-5-1983 published in The Times of India, and thereupon after collecting the requisite information they immediately filed the writ petition on 4-7-1983. The observation of Ramaswamy, J., that the tenants were intimated by the State Government about the modification of the development plan concerning the land by issuing notice, with respect, appears to be mere ipse dixit, not borne out by any corroborative evidence produced before the Court.

Ramaswamy, J., relied on certain decisions of the Supreme Court in support of his decision. For constraints of space, they are not discussed here. However, in our respectful opinion, the facts of none of those cases are applicable to the instant case where during the pendency of acquisition proceedings the specified public purpose was changed without following the procedure established by law and giving any intimation and opportunity of being heard to the interested persons.

Conclusion

(a) In Industrial Development case the Supreme Court for the first time had the occasion to decide the substantial question of law as to whether the public purpose specified in the declaration made under Section 6(1) of the Land Acquisition Act must continue to subsist until the acquired land vests absolutely under Section 16 or 17, as the case may be. Ramaswamy, J., with respect, gave an intriguing answer to the question. He first observed that if the public purpose specified in the plan of the land acquired under the MRTP Act is snapped off, prior to the completion of acquisition proceedings as per Section 126(2) of the MRTP Act, the entire acquisition proceedings under Section 126 would become incompetent, but such is not the case in acquisition under the LA Act simpliciter. But having said so, he conclusively answered the question in the negative even in case of acquisition under the MRTP Act, as long as the acquired land is utilized for any public purpose.

(b) According to Ramaswamy, J., the MRTP Act is a complete scheme or code for acquisition of earmarked land under a plan for a specified public purpose, which is distinct and independent from the general scheme of acquisition of land under the LA Act. This observation of Ramaswamy, J., is erroneous. Under the MRTP Act a planning authority can only initiate acquisition proceedings by making an application under Section 126(1) to the State Government for acquiring the land under the LA Act. As such, the LA Act is supplemental to the MRTP Act, and once a declaration is made under Section 6 of the Land Acquisition Act read with Section 126(2) of the MRTP Act, there cannot be any difference to the footing of acquisition.

(c) Ramaswamy, J., by implication, seems to have made a classification of persons based on whether the MRTP Act or the LA Act is applied to acquire their land. It is submitted that such a classification is offensive to Article 14 of the Constitution as it is not founded on any intelligible differentia, nor has such a differentia a rational nexus with the object sought to be achieved, namely, compulsory acquisition of land for a public purpose. On this point his decision is per incuriam of the decision of the seven-Judge Constitution Bench in Nagpur Improvement Trust.20

(d) Many questions that arose in the facts and circumstances of the case were also left unanswered by Ramaswamy, J. He specifically did not inquire how after BMRDA was appointed in 1977 as the Special Planning Authority for Kurla Taluk, Bombay Municipal Corporation could still continue with the acquisition. Ramaswamy, J., with respect, failed to appreciate the provisions of Section 115 read with Section 40(3)(d), under which BMRDA is empowered to submit to the State Government proposals for development of land, "either belonging to, or vesting in it, or acquired or proposed to be acquired by it" under Section 116 of the MRTP Act. It is not examined how BMRDA could submit the proposals for development of the land which did not belong to any of these categories, and how the State Government could sanction the plan submitted by it on 19-4-1979, even when the acquisition proceedings of the land for a different public purpose initiated by BMC were still going on.

(e) The observation of Ramaswamy, J., that the requirement of taking possession under Section 16 of the LA Act is satisfied by taking "symbolic possession" of the land with the help of drawing a panchnama is contrary to the law laid down by the three-Judge Bench in Balwant Bhagde case27 where it was ruled that taking of possession within the meaning of Section 16 or 17(1) means taking of possession on the spot by taking actual possession of the land and that symbolical possession merely on paper is not enough. In Industrial Development possession could not have been taken merely from the owner when the tenant had constructed certain structures on the acquired land and was in possession thereof.

(f) Ramaswamy, J., had also ruled that a tenant is not entitled to challenge the acquisition. This cannot be the correct proposition of law. A tenant enjoys a legally protectible and tangible interest in the acquired land. Its right to the tenanted premises on which it had constructed structures by spending substantial funds, as in the instant case, was divested by the acquisition proceedings. As such, its standing to sue the Municipal Corporation or challenge the acquisition proceedings cannot be denied. This view is also per incuriam of the decision of the seven-Judge Constitution Bench in Nagpur Improvement Trust20.

(g) In contrast, Majmudar, J., with respect, rightly disagreed with Ramaswamy, J., and answered the question in the affirmative without making any distinction, and agreed with the judgment of the High Court on merits. Majmudar, J., with respect, also rightly disagreed with Ramaswamy, J., on the question of the locus standi of a tenant to challenge the acquisition proceedings. Majmudar, J., with respect, also rightly held that on the appointment of BMRDA as the Special Planning Authority, BMC had lost its locus standi to continue further with the acquisition of the plot, as in its place BMRDA alone was vested with the power of acquisition of land in the notified area by Section 116 of the MRTP Act, and hence BMRDA should have followed the gamut under Sections 115 and 116 of the MRTP Act.

In view of the divergent views of the two learned Judges comprising the Division Bench of the Supreme Court in Industrial Development case1 the ratio of the judgment of the Division Bench of the Bombay High Court that the public purpose specified in the declaration made under Section 6(1) of the Land Acquisition Act must continue to subsist until the acquired land vests absolutely under Section 16 or 17 as the case may be, appears to be holding the ground. It is therefore necessary to declare the law on the questions remaining unsettled in Industrial Development case1 by a larger Bench of the Supreme Court at the earliest opportunity.

1    (1996) 11 SCC 501 Return to Text

*   MA, LLB, PHDFM, PhD, Advocate, Bombay High Court. Return to Text

2. As modified for the purpose of a Special Planning Authority under sub-section (3) of Section 40. Sub-section (3) lays down that the provisions of Chapter VI of the MRTP Act for a New Town Development Authority shall, subject to the provisions of this section and Section 41, apply mutatis mutandis to the Special Planning Authority as they apply in relation to a development authority, as if the notified area were a new town, subject to modification, contained thereunder. Return to Text
3. As it stood in 1972, the year of acquisition of the land in the case under comment. Section 126 was amended by Maharashtra 11 of 1973 and again by Maharashtra 10 of 1994 making substantial changes in sub-sections (1), (2), (3) and (4). However, the provisions of the section, as it stood in 1972, are only relevant for this case, and were also referred to in the decision. Return to Text
4. This point is made clear by sub-sections (3)(i), (ii) and (iii) inserted by the MRTP (2nd Amendment) Act, 1972 (Maharashtra 11 of 1973). Clause (i) of sub-section (3) provides that where the land is acquired for the purposes of a new town, the market value of the land shall be the market value prevailing on the date of publication of the notification constituting the development authority under Section 113(2). Clause (ii) provides that in case of a Special Planning Authority the market value shall be as on the date of publication of the notification of the area as an undeveloped area under Section 40(1); and clause (iii) provides that in any other case the market value shall be the market value prevailing on the date of publication of the interim development plan, the draft development plan, or the plan of the area or areas for comprehensive development, whichever is earlier, or as the case may be, the date of publication of the draft town planning scheme. Therefore, for the purpose of the date on which the market value has to be determined for the acquired land under the MRTP Act the relevant notification, as mentioned hereinabove, is analogous to the notification published under Section 4(1) of the LA Act. However, these provisions were not referred to in the decision under comment. Return to Text
5. Sub-section (1) of Section 6 refers to the report of the Collector to the appropriate government, subject to the qualification "if any". This is because, if the land is acquired invoking the urgency provision of Section 17, under sub-section (4) thereof the appropriate government may direct that the provisions of Section 5-A shall not apply. Therefore, if the appropriate government invokes the provisions of Section 17(4) the Collector shall not be required to make the inquiry provided under Section 5-A, and consequently, in such an event, there shall be no report of the Collector to the appropriate government under Section 5-A(2), and the declaration under sub-section (1) of Section 6 can be made without such report. Return to Text
6. AIR 1964 SC 1217, at p. 1221. Also see Shri Mandir Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298, 300 and Shyam Nandan Prasad v. State of Bihar, (1993) 4 SCC 255, 260. Return to Text
7. AIR 1963 Cal 565 Return to Text
8. Ibid., p. 572, para 25. Return to Text
9. AIR 1982 Del 462 Return to Text
10. Ibid., p. 469, para 33. Return to Text
11. AIR 1989 Bom 156 Return to Text
12. Ibid., pp. 159-60, para 4. Return to Text
13. (1996) 11 SCC 501, 513 Return to Text
14. Ibid., p. 514, para 11. Return to Text
15. For a fuller discussion on this point please see Mariyappa v. State of Karnataka, (1998) 3 SCC 276, 291. Return to Text
16. (1996) 11 SCC 501, 514 Return to Text
17. Ibid., p. 515, para 13. Return to Text
18. As per sub-section (4) of Section 126 introduced by Maharashtra 14 of 1971 if a declaration is not made within the expiry of three years (one year as per amendment introduced by Maharashtra 10 of 1994) from the date of publication of the draft regional plan or any other plan or scheme or having been made the said period expired at the commencement of the (Amendment Act) Act, 1993, (Maharashtra 10 of 1994), the State Government may under sub-section (4) of Section 126 make a fresh declaration for acquiring the land under the LA Act in the manner provided by sub-sections (2) and (3) of Section 126, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring the land afresh. Return to Text
19. See Om Prakash v. State of U.P., (1974) 1 SCC 628, 633. Also see U.P. Avas Evam Vikas Parishad v. Jainul Islam, (1998) 2 SCC 467 where the Apex Court ruled that the provisions of the Land Acquisition Amendment Act, 1984 (Act 68 of 1984) are applicable to acquisition of land under the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 as otherwise, the compensation payable to the owner whose land is acquired under the Adhiniyam would be less than the compensation payable to the owner whose land is acquired under the LA Act as amended by the 1984 Act. The Court followed the principle settled in Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, 969 that "if certain provisions of law constructed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction". Return to Text
20. (1973) 1 SCC 500 Return to Text
21. Ibid., p. 507, para 30. Return to Text
22. See Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133, 139 Return to Text
23. (1996) 11 SCC 501, 515 Return to Text
24. Ibid., p. 516. Ramaswamy, J., had erroneously referred to Section 17 of the LA Act even when discussing the acquisition proceedings under the MRTP Act. Section 129 of the MRTP Act provides for taking possession of land in case of urgency, and as such Section 17 of the LA Act is not applicable. Return to Text
25. Ibid., p. 518, para 22. Return to Text
26. AIR 1989 Bom 156, 161 Return to Text
27. (1976) 1 SCC 700 Return to Text
28. Ibid., p. 711, para 28. Return to Text
29. (1996) 11 SCC 501, 519 Return to Text
30. Ibid., p. 517 Return to Text
31. Ibid., p. 521, para 33. Return to Text
32. Ibid., p. 519, para 23. Return to Text
33. AIR 1989 Bom 156, 160-61 Return to Text