L. Vinayagam and Others vs The State of Tamil Nadu and Others

Mishra, J.—Petitioners herein have challenged a notification u/s 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act'')

and the consequent declaration u/s 6 thereof on the ground that as declared, the public purpose is the creation of a new neighborhood scheme

known as Kalaignar Karunanidhi Nagar Part II Schemes, which is vague and thus never provided to the petitioner adequate opportunity to object

to the acquisition. The notification states,

Whereas it appears to the Government of Tamilnadu that the lands specified below, are needed for a purpose, to wit, for the creation of a new

neighborhood known as Kalaignar Karunanidhi Nagar Part II Schemes, notice to that effect is hereby given to all whom it may concern in

accordance with the provisions of sub- section (1) of Section 4 of the Land Acquisition Act 1894 (Central Act 1 of 1894); and the Governor of

Tamilnadu hereby authorises the Special Deputy Collector (Land Acquisition)State Housing Board Schemes, Madras -1, his staff and workmen to

exercise the powers conferred by sub-section (2) of Section 4 of the said Act. u/s 3(c) of the said Act, the Governor of Tamilnadu appoints the

Special Deputy Collector (Land Acquisition) State Housing Board Schemes, Madras-1 to perform the function of a collector u/s 5A of the said

Act"".

Following the previous judgments of this court in the case of Narayana Raju & 3 others v. State of Tamil Nadu 1990 TLNJ 358 and L.

Krishnan v. State of Tamil Nadu 1991 TLNJ 144 this petition has to be allowed and the notification quashed. I have, following the said two

judgments, ordered in W.P. No. 9590 of 1984 (order dated 19.7.1994) (R. Thailai Ammal v. The State of Tamil Nadu) accordingly that the

public purpose as specified above is vague and thus does not satisfy the requirement of law.

In Narayana Raju''s case 1990 TLNJ 358 (supra) the public purpose stated was, ""for the formation of Madurai North Neighbourhood project

in Madurai North Taluk, Madurai District"". In L Krishnan''s case 1991 TLNJ 144 (Supra) and other analogous cases, the public purpose was

described variously as ""Kalaignar Karunanidhi Nagar Further Extension schemes"", for the creation of a new neighbourhood known as Kalaignar

Karunanidhi Nagar Part II Scheme"" and for increasing housing accommodation for the development of South Madras Neighbourhood"". The

Bench hearing the said writ petitions only followed what had been decided by a Bench of this court in an earlier case in the The State of Tamil

Nadu and Another Vs. A. Mohammed Yousuf and Others, and relied upon the statement of law in this behalf in a judgment of the Supreme Court

in Munshi Singh and Others Vs. Union of India (UOI), .

In Munshi Singh and Others Vs. Union of India (UOI), their Lordships of the Supreme Court interfered with the notification issued u/s 4(1) of

the Act on the ground that it was vague and indefinite and on account of those defects the persons interested in the land proposed to be acquired

did not have a proper opportunity to file objections. The Supreme Court in the said case held that such a defective notification, which formed the

basis of subsequent proceedings, could not be sustained, and held in agreement with the contention that if Section 5A enquiry had to serve any

purpose, then it must be given full effect and that can be done only if the persons interested in the land proposed to be acquired have an

opportunity to submit their objections and those objections could only be submitted if the notification u/s 4(1) of the Act while mentioning the

public purpose gave some definite indication or particulars of the said purpose which would enable the person concerned to object effectively, if

so, desired. The Bench in The State of Tamil Nadu and Another Vs. A. Mohammed Yousuf and Others, observed as follows:

That apart, the expression ''public purpose'' viz, ""for development of the area by construction off houses by the Tamilnadu Housing Board"" is most

indefinite and vague. It is now well settled that in a notification u/s 4(1) of the Land Acquisition Act, it is the obligation on the part of the acquiring

authority to state the ''public purpose'' with sufficient particulars and clarity. The mere mention in the notification that the land was being acquired

for development of the area by construction of houses by the Tamilnadu Housing Board, is wholly insufficient and conveys no ideas as to the

specific purpose for which the site was to be utilised. Even in the counter affidavit filed to the writ petition, the public purpose was not spelt out

with any clarity or particularity. No other material was also placed on record to show the exact purpose for which the land was to be acquired. A

bare statement that houses were proposed to be constructed on the site by the Housing Board, without indicating either the class of persons for

whom they were to be constructed or the necessity for the same, is not sufficient ""compliance with the requirement of law. Reliance placed by the

learned government pleader on the object for which the Housing Board has been constructed to justify the existence of public purpose cannot

advance the case because we find that there is no whisper in the counter as regards the requirement of Sections 40 and 41 of the Tamilnadu State

Housing Board Act, 1961"".

The State preferred to seek special Leave to appeal and a Bench of the Supreme court found no error in the approach of the Bench of this

court. It, however, made a detailed examination of the object of establishment of the Housing Board, the requirement of the framing of the schemes

and acquisition of lands for the purposes of the Housing Board and held in State of Tamil Nadu and another Vs. A. Mohammed Yousef and

others, without ambiguity as follows:

The question for decision is whether the acquisition proceeding can be initiated only after the framing of the proposed scheme and not earlier. The

learned Attorney General contended that having regard to the provisions of the Act and the other relevant considerations, it must be held that the

procedure in regard to the preparation of the scheme has to await the conclusion of the land acquisition proceeding. It is only after the possession

of the land is delivered to the Board that its engineers and other experts can go over the land, make necessary inspection and collect vital data, on

the basis of which the scheme can be drawn up. It is essential to have a clear idea of the area of the land, its boundaries and the nature of the soil

for deciding about the details of the proposed scheme, and this is not possible so long the owner of the land continues in possession. Any attempt

to draw up a scheme earlier has been described by the learned counsel as an exercise in futility. Alternatively it has been contended that even if it

be held to be permissible to frame the scheme without waiting for the acquisition and possession of the land, it cannot be further assumed that the

land acquisition proceeding has to wait the finalisation of the scheme. In other words, both the proceedings may continue simultaneously, or any of

the proceeding including one for land acquisition can be commenced without waiting for the other. In any event, the land acquisition proceeding

should not be condemned as pre-mature on the ground that the scheme has not been framed. We have closely examined the entire Act with the

assistance of the learned counsel for the parties and in our view the contention on behalf of the respondents that the proceeding for acquiring land

can be commenced only after the scheme is framed, is well founded"".

and rejected a specific argument by the Attorney General that unless the Board gets actual possession of the land its officers cannot go over the

same for collecting the information essential for drawing up of the scheme, in these words.

Mr. Attorney General repeatedly said that unless the Board gets actual possession of the land in question, its officers cannot go over the same for

collecting the information essential for drawing up of the scheme. It has, therefore, been suggested that it is wholly impractical to expect the scheme

to be framed before obtaining the possession of the land. Mr. Parasaran, the learned Counsel for the respondents, rightly pointed out that the

provisions of Section 147 furnish a complete answer to this agreement (sic). The section empowers the Chairman (now the Managing Director) of

the Board or any person either generally or specially authorised by this be (sic) enter into or upon any land with or without assistants or workmen

for the purpose of making any inspection, survey, measurement, valuation or enquiry or to take levels or to dig or bore into sub-soil or to set-out

boundaries and intended lines of work etc. The last clause in the section gives wide power to do any other thing which may appear necessary for

achieving the purpose of the Act subject to certain reasonable restrictions"" (vide para9) and also observed in paragraph 11,

The Board has not been vested with the unrestricted power to frame any scheme, as suggested by its planners. It has to take into account the

representation by the local authority as mentioned u/s 50 and the objection of any other person u/s 50 and decide the same on merits before

according sanction. The matter is not concluded even at that stage, the aggrieved person may appeal to the State Government and it is only subject

to the final result therein that the scheme becomes enforceable. In this set up it will be practical and consistent with common sense to have the

scheme finalised before starting an acquisition proceeding. We, accordingly hold that a proceeding under the Land Acquisition Act read with

Section 70 of the Madras Housing Board Act, can be commenced only after framing the scheme for which the land is required. The notification

issued u/s 4 in the present case must, therefore, be held to be pre- mature and it was rightly quashed by the High Court.

In yet another judgment, a Division Bench of this court in Mahalakshmi Ammal and others Vs. State of Tamil Nadu and another, has quashed

the notification on the ground of vagueness wherein the public purpose in the notification read as follows:

.......xx....xx for the construction of houses under Neighbourhood scheme, Salem.

The learned Judge took notice of a judgment of the Supreme Court in the case of Madhya Pradesh Housing Board Vs. Mohd. Shafi and Others,

besides the earlier Division Bench judgment of this court in The State of Tamil Nadu and Another Vs. A. Mohammed Yousuf and Others, to

reiterate the law as above.

As against the above, a learned single Judge of this court has chosen to express his discordant view in a batch of writ petitions (W.P. Nos. 202

of 1985 etc. order dated 25.1.1994) (P. Mahalingam and Ors. v. The Special Tahsildar (LA) Neighbourhood Scheme: Salem) and held that this

court''s Bench decision in The State of Tamil Nadu and Another Vs. A. Mohammed Yousuf and Others, was rendered without being informed

about the constitution Bench judgment of the Supreme court in the case of Aflatoon and Others Vs. Lt. Governor of Delhi and Others, . The

Supreme court in the said case considered the validity of a notification u/s 4 of the Act which stated that land was needed for a public purpose,

viz., the planned development of Delhi. The main arguments addressed before the court challenging the notification for the said public purpose was

that the public purpose specified in the notification, i.e the planned development of Delhi, was vague as neither a master plan nor a Zonal plan was

in existence on the date of the notification and as the purpose specified in the notification was vague, the persons affected were unable to exercise

effectively their right u/s 5A of the Act. The constitution Bench endorsed the view that the public purpose which has to be stated in sub-section (1)

of Section 4 notification has to be particularised because unless that is done, the various matters which were mentioned in sub-section (2) could not

be carried out and observed,

We think that the question whether the purpose specified in a notification u/s 4 is sufficient to enable an objection to be filed u/s 5A would depend

upon the facts and circumstances of each case.

The Court took notice of the opposite view and observed,

In the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can

only be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to

specify the particular public purpose for which each and every item of land comprised in the area is needed"".

The Constitution Bench also indicated that it would be necessary in each case to see if the person interested had really been prejudiced by the non-

specification of the public purpose for which the plots in which they were interested were needed and whether they took proper steps to have the

notification quashed on the ground within a reasonable time. After however examining the provisions of the Delhi Development Act, 1957, and the

provisions of the Land Acquisition Act, the Bench concluded as follows:

The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came

into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after

that Act came into force, but there was no inhibition in acquiring land for plained development of Delhi under the Act before the Master Plan was

ready see the decision in Patna Improvement Trust Vs. Smt. Lakshmi Devi and Others, . In other words, the fact that actual development is

permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government

from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do

with acquisition of property; acquisition generally precedes development. For planned development in an area other than a development area, it is

only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any

property under the Act and develop it after obtaining the approval of the local authority""(para 23).

In Madhya Pradesh Housing Board Vs. Mohd. Shafi and Others, (incidentally this judgment of the Supreme Court is authored by the same

learned Judge who authored the judgment in The State of Tamil Nadu and Another Vs. A. Mohammed Yousuf and Others, as the Chief Justice of

this Court), the Supreme Court has considered the validity of a notification u/s 4(1) of the Act on the ground that it was vague in describing the

public purpose. The public purpose was mentioned in the Schedule to the notification as ''residential''. The Supreme Court has said,

Apart from the defect in the impugned notification, as noticed above, we find that even the ""public purpose"" which has been mentioned in the

schedule to the notification as ""residential"" is hopelessly vague and conveys no idea about the purpose of acquisition rendering the notification as

invalid in law. There is no indication as to what type of residential accommodation was proposed or for whom or any other details. The State

cannot acquire the land of a citizen for building some residence for another, unless the same is in ""public interest"" or for the benefit of the ""public"" or

an identifiable section thereof. In the absence of the details about the alleged ""public purpose"" for which the land was sought to be acquired, no one

could comprehend as to why the land was being acquired and therefore was prevented from taking any further steps in the matter"". (para 14)

A reference is made in this judgment to the earlier judgment of the Supreme Court in Munshi Singh and Others Vs. Union of India (UOI), , which

judgment has also been referred to in the judgment of the Division Bench of this Court in L.Krishnan''s cases 1991 TLNJ 144 (supra) and it has

been specifically pointed out as follows:-

In Munshi Singh and Others Vs. Union of India (UOI), , the notification issued u/s 4(1) of the Act had stated the purpose for acquisition as ''for

planned development of the area"". A note was also appended in the notification to the effect that the ""plan of the land may be inspected in the

Office of the Collector, Meerut"". This court, dealing with the requirements of Section 4 in the context of the necessity to state with clarity the

public purpose"" in the notification, observed:

''It is apparent from Sub-section(2) that the public purpose which has to be stated in Sub-section (1) of Section 4 has to be particularised because

unless that is done the various matters which are mentioned in Sub-section(2) cannot be carried out; for instance, the officer concerned or his

servants and workmen cannot do any act necessary to ascertain whether it is suitable for the purpose for which it is being acquired. If the public

purpose stated in Section 4(1) is planned development of the area without anything more it is extremely difficult to comprehend how all the matters

set out in Sub-section(2) can be carried out by the officer specially authorised in this behalf and by his servants and workmen"". (para 15).

The court has then gone to say: ""As already noticed in the notifications u/s 4 all that was stated was that the land was required for ""planned

development of the area"". There was no indication whatsoever whether the development was to be of residential and building sites or of

commercial and industrial plots, nor was it possible for any one interested in the land sought to be acquired to find out what kind of planned

development was under contemplation i.e., whether the land would be acquired and the development made by the Government or whether the

owners of properties would be required to develop a particular area in a specified way..."".

This court finally held that owing to the vagueness and indefiniteness of the ""public purpose"" stated in the notification u/s 4(1) of the Act the

acquisition proceedings were bad and the entire acquisition proceedings were quashed.

Munshi Singh''s case (supra) was at a much better footing than the instant case, where the only disclosure of the ""public purpose"" is stated to be

residential"", (para 16).

Thus the view that has prevailed through out as expressed in Munshi Singh and Others Vs. Union of India (UOI), has been reiterated in Madhya

Pradesh Housing Board Vs. Mohd. Shafi and Others, by the Supreme Court and has not in any manner conflicted with the judgment of the

Constitution Bench of the Supreme court in Aflatoon and Others Vs. Lt. Governor of Delhi and Others, . What is indicated in Aflatoon''s case

(supra) is that the question whether the purpose specified in a notification u/s 4 is sufficient to enable an objection to be filed u/s 5A would depend

upon the facts and circumstances of each case, and that acquisition for a public purpose can be made under the Act for acquisition by the

competent authority and that there was no inhibition in acquiring land for the planned development of Delhi under the Act before the Master Plan

was ready although there would be no planned development of Delhi except in accordance with the provisions of the Delhi Development Act.

Since this much wisdom the judges should concede in each other, although learned Judge delivering judgment in WP No. 202 of 1985, etc (P.

Mahalingam and Ors. v. the special tahsildar (LA) (dated 25.1.1994) (supra) has fallen in error only because his attention was not drawn to the

fact, that in State of Tamil Nadu and another Vs. A. Mohammed Yousef and others, , the Supreme Court in its judgment adopted the method of

taking notice of the various provisions of the Madras State Housing Board Act and the Land Acquisition Act and laid down the law to deliver the

ratio decidendi in these words:

We have closely examined the entire Act with the assistance of the learned counsel for the parties and in our view the contention of behalf of the

respondents that the proceedings for acquiring land can be commenced only after the scheme is framed, is well founded.

It is not difficult to assimilate from the constitution Bench judgment of the Supreme Court in Aflatoon and Others Vs. Lt. Governor of Delhi and

Others, and the three judgments of the Supreme Court in Munshi Singh and Others Vs. Union of India (UOI), ; State of Tamil Nadu and another

Vs. A. Mohammed Yousef and others, and in Madhya Pradesh Housing Board Vs. Mohd. Shafi and Others, that vagueness as to the statement of

the public purpose is attached to the non-mentioning of necessary particulars and whether non-mentioning of a particular has rendered the

notification vague will vary from case to case. Consensus of judicial opinion is clear and categoric in this behalf that a statement like ""Kalaignar

Karunanidhi Nagar Part II Scheme"" is vague for want of particulars. In State of Tamil Nadu and another Vs. A. Mohammed Yousef and others, ,

the Supreme Court has noticed another infirmity in the statement of ""public purpose"" that a proceeding for acquiring land in an area covered by a

Town Planning Act or a Housing Board Act can be commenced only after the Scheme is framed if it is so inferable from the Scheme of the

concerned Town Planning Act or the Housing Board Act. It is obvious that no such scheme is framed in accordance with the provisions of the

special Act. There is, however, vagueness and indefiniteness as to the public purpose in the 4(1) notification and the entire proceeding is inflicted

by a vague public purpose stated in the notification. I prefer in the instant case to go with the consensus of the judicial opinion than to go by the

discordant view of the learned judge in W.P. No. 202 of 1985 etc (P. Mahalingam and Ors. v. Special Tahsihlar (L.A.) (supra).

In view of such authoritative pronouncements as noticed by me above, the ''public purpose stated in the impugned notification u/s 4(1) of the

Act and reiterated in the declaration u/s 6 of the Act is vague and indefinite. The notification and the consequent declaration for the said reason are

fit to be quashed.

In the result, the writ petition is allowed and the impugned notification and the declaration are quashed. The respondents are restrained from

proceeding further with the acquisition of the petitioners'' lands pursuant to the said notification and declaration. No costs.