STATE OF JAMMU & KASHMIR

SANAULLAH MIR

April I, 1980

(A. C. GUPTA AND N. L. UNTWAL!A, H:]

 Jammu und Kashmir State Land Acquisition Act, 1934 Section 4-Scope of,

The respondent's forefather \vas the landholder of a piece of land in the

State. 1be land was taken possession of in 1897 as the land came urrder a Timber dopot established on land adjacent to Government land.

The practice prevalent during the Maharaja's time was that only rent was remitted and no compensation was paid for the taking over the land. The respondent's aiices C tors had no proprietory right in the land and the right of possession was also

IQ!\! oo the Government dispossessing him.

Some sixty years later, the respondent filed an application before the then Prime Minilter of the State for payment of compensation of the said land.

Instead of deciding as to whether the State ~'as liable to pay compens.ation in respect of the land which had been taken over sixty years ago, a new land acquWtion proceeding under the Jammu and Kashmir State Land Acquisition Act, 1934 was started in the year 1955 and an Award for Rs. 32,645.62 as compensation for the land was made by the Collector. On reference the District Judge increas'ed the amount of compensation.

On appeal by the State, the High Court restored the amount fixed by the Collector. The respondent's

application under Order 41 Rule 27 C.P.C. was dismissed by the High Court.

A review petition that the land had already been acquired and that the land acquisition proceeding was without jurisdiction and a nullity was rejected.

A suit was filed that the Jand acquisition proceedings had been taken as a result of mistake of fact and law and that the entire proceeding was vitiated.

The suit was dis.missed. Appeal to a division Bench was also dismissed.

Allowing the appeal,

HELD : In 1894 the Assamidar lost his assamidari right when the State p resumed the land from him. There was no law then that compensation was , __ Jo be given. It depended upon the sweet-will of the Riyasat to give some "../ other )ancl in lieu of the land acquired. Only the land revenue was remitted, and docnments indicate, compensation was also paid for the standing crops in the land. No right was left in the landholder in respect of which he could acquire a better right. Whatever right was possessed by the respondent's ances tor was dead and gone in the year 1894. [285H, 286A-B] G

2. The land was resumed by the Durbar from the ancestor of the respondent before the end of the 19th century and it was recorded as 'Khalsa'. The Ian<! bad become the State land in the full sense of the term and belonged to the State since then. No semblance of any right, title or interest was left in the respondent's ancestor thereafter. [286D-E]

3; A que<r procedure was adopted for acquiring the land under the State R Lad Acqoisition Act afresh, thus determining the compensation on the basis of the market value of the land prevailing 60 years later. Under the in!luence ol

19-IS9~C 1 180

SUPREME COURT

1 REPORTS

[1980] 3 S.C.R.

A some high ups, a case was made out for' payment of compensation to tlte res

pondent in respect.of the land acquired'sixty years ago by acquiring it again which led to the determination of the market value of the land in the year 1955.

[286G, 287AJ

4. The State Exchequer cannot be made to suffer for illegal actions of its officers. The land had been resumed long ago and belonged to the State. The .8 whole proceeding of land acquisition was a nullity and the Award resulting therefrom was ultra vires. It mattered ttle whether the proceeding waa taken as a result of fraud or mistake or otherwise. The respondent had not practised any fraud nor was the land acquisition' proceeding started as a result of any mistake of fact It was either as a result of gross negligence or a deliberate act on the part of the officials at the instanCIO of some high-ups to help the respondent There is no question of any acquisition of the State's own land as was purported to be done in this case. [287B-DJ 0 Government Off Bombay v. Esufali Salebhai, I.L.R. XXXIV Bombay, 618; 1vlohammad Wajeeh Mirza v.

Secretar:y of Statt for India in Council, A.LR. 1921 Oudh, 31, The Deputy Collector , Calicut Division v. Aiyavu Pil/ay amf others, IX Inciian Cases, 341; The Collector of Bombay v. Nusserwanji Rattanji Mistri & Others [1955] I S.C.R. 1311 referred to.

Secy. of State v. Tayasaheb Yeshwantrao Holkar, A.LR. 1932 Born. 386, & D Narriot v. Hamoton [1797] 2 Sm. L.C., 386 distinguished.

5. The plea taken in the appeal by , filing a petition under order 41 Rule 27 or in the review matter in the High Court was beyond the scope of the appeal filed under the State Land Acquisition 'Act. The scope of that appeal was the determination of the amount of compe'nsation and not to , declare the whole of the land acquisition proceeding a nullity.

Whatever, therefore, was said by the g High Court either in appeal on the question of adverse possession or while re- ')- jecting the review petition was outside, the scope of the land acquisition appeal.

It could not operate as resjudicata in the present suit. The observations of the High Court were without jurisdiction. Nor did any question of estoppel arise in this cae because the respondent waS not made to change his position by starting the land acquisition proceeding against him.

He had already lost his land.

He merely wanted compensation.

The method adopted for the F payment of compensation was wholly ultra vires and without jurisdiction.

[288H, 289A-B]

CIVIL APPBLLATB JURISDICTION': Civil Appeal No. 1347 of 1970.

From the Judgment and Decree dated 29-4-1969 of the Jammu and Kashmir High Court in Civil Appeal No. 67 of 1965.

G G. L. Sanghi, V. K. Boone and Shri Narain for the Appellant.

Gopi Nath Kunzru, K. L. Taneja and S. L. Aneja for the Res- "° : pondent. -.._ The Judgment of the Court was delivered by •

UNTWALJA, J.,-A piece of land measuring 113 Kanals and 11 Marlas situated in Chawni Badam Singh, Chattabal, Srinagar in the State of Jammu & Kashmir bejonged to the forefathers of the defendant-respondent in this appeal, by certificate. Indisputably the reg-

• •

pondent's ancestor was Assamidar of the land, that. s to say, he was the land holder as distinguished from land owner. The land owner was the Maharaja Bahadur of Jammu & Kashmir fin whose Riyasat the land was situate. Proposals were made in the year 1893 to take this land from the ancestor of the respondent as it came under a timber depot established on adjacent Government land. The land was taken possession of and as was the practice prevalent during the Maharaja's time only rent was remitted and no compensation was paid for taking over the land. The respondent's ancestor had merely a right of possession and no proprietory right in the land. He lost the right of possession too on the Government dispossessing him and taking possession for the purpose of the timber deoot. Sixty years later the respondent filed an application before the then Prime Minister of Jammu & Kashmir for payment of compensation of the land. Inquiries were made from the various officers of the various department and eventually instead of deciding as to whether the State was liable to pay any compensation in respect of the land which had been taken over 60 years ago or not the decision taken was to start a new land acquisition proceeding under the Jammu & Kashmir State Land Acquisition Act, 1934 which is at pari materia with the Central Land Acquisition Act, 1894. Notice under s. 4 of the said Act was issued in or about the year 1955 and the Collector, Srinagar made an Award determining the compensation for the land at Rs. 32,645·62 paise.

The respondent asked for a reference and on reference being made the learned District Judge determined the compensation at Rs. 35,908·10 paise. The State preferred an appeal. The High Court restored the amount fixed by the Collector and knocked down the enhancement made by the District Judge. For the first time in the High Court an application was filed under Order 4 I Rule 27 of the Code of Civil procedures claiming adverse possession of the land and for the taking _ of additional evidence. The High Court repelled this contention . ..,...,. Later a Review Petition was filed in the High Court claiming that the land had already been acquired and the entire land acquisition proceeding was without jurisdiction and a nullity. The High Court was asked to award no compensation. The High Court rejected this Review Petition. Thereafter the present suit was filed saying that the defendant respondent had committed fraud and the land acquisition proceeding had been taken as a result of mistake of fact and law and that the entire proceeding was vitiated. The suit was filed on the Original side of the High Court of Jammu & Kashmir. The learned Judge dismissed the suit. The State, the appellant in this appeal, failed in appeal before the 1 etters Patent Bench of the High Court.

The matter has now come before us.

SUPREME COUR~ REPORTS

(191!0] 3 S.C.R.

The findings of the learned single Judge are :-

"(1) That the lands in dispute were in continuous possession of the forest department since 1894 A.D.

(2) That no rent or compensation was paid to the defendant or his ancestor for these lands.

(3) That the lands in dispute were recorded as "Khalsa

Sarkar" which means that the proprietory inte1est vested in the Government.

(4) That at the time when the land acquisition proceedings were initiated, the o)Iicers concerned of the plaintiff were fully aware of the facts mentioned above.

But their attention was not specifically drawn to the council resolutions.

(5) That the forest records paving been burnt in the year 1943 and after a fresh. enquiry was initiated at the instance of the Advocate general, the council resolutions were traced in the Government repository at Jammu.

(6) That the old settlement, file which contained the resolutions perhaps did not form part of the land acquisition file."

In regard to finding no. 6 there was some controversy as to whether the land acquisition file contained the old resolutions or not and whether the attention of the authorities was drawn to them. We shall assume in favour of the respondent as found by the learned Trial Judge that there was no fraud jlractised by him nor was there any mistake of fact on the part of th<; authorities concerned in starting the land acquisition proceeding.

The Appellate Bench of the High Court consisted of Mian Jalalud-Din J. and Anant Singh J. , They differed on most of the points although agreed in their conclusion that the appeal should be dismissed. The findings of Miao Jalal-ud-Din J. are :-(1) "That it could not be said that the authorities dealing with the acquisition proceedings were ignorant about the factual aspect of the matter that the land had been resumed in the year 1893 under council resolution and that no compensation was to be paid for this, and that its character was that of "KHALSA" and it rejllained in possession of the forest department for over 60 years ..... " (2) "In our opinion the initiation of acquisition proceedings was wholly uncalled for as there was nothing to be acquired. Land, which was meant to be acquired, was already

• •

resumed by the Government and in possession of the Forest Department right from the year 1893 A.O. under the orders of the council and was shown as Khalsa;" (3) "It appears to be a case of gross negligence on the part of the officers of the Government dealing with the acquisition matter. The plaintiff cannot avoid the decree on the ground that his officers have acted in gross negligence;" and ( 4) that the order of the High Court in appeal and in review operated as res judicata. The plaintiff-aippellant was also estopped from challenging the land acquisition proceeding. Mian Jalal-ud-Din J. agreed in this regard with the learned single Judge.

Arrant Singh J. did not agree with the other learned Judge on the

question of estoppel and res-judicata but agreed with him that negli C gence was no ground for setting aside the Award made in the land acquisition proceeding and concurred in the dismissal of the appeal.

Even on the findings recorded by the courts below this appeal must succeed. We shall, however, briefly refer to some facts which emerge from the council resolutions and some other documents of the D years 1893 and 1894.

Ext. P.W. 5/1 is State council Resolution No. 2 dt. 7-6-1893 by which sanction was accorded to the allotment of land with existing house situated at Purani Chawni for opening a Government Timber Depot. Eventually land in question al so came under this depot.

Ext. P.W. 5/2 is State Council Resolution No. 17 dated 4-9-1893 showing that from the report of the Tehsildar it appeared that the Forest Department wanted to take possesion of the land in question which was a sown land by storing timber there. Council Resolution No. JO dated 28-10-1893, Ext. PW 5/3 is very important. Now this resolution states that the land shall have to be compulsorily acqnired but "as per practice in the country only the land revenue shall have to be remitted and the cultivators cannot get any compensation in cash nor can the Council sanction taking of the land on lease. Of course there is no bar to the grant of cultivated land of the same quality to the cultivators in exchange by the Government."

Next comes the Resolution No. 8 dated 17-2-18~4, Ext. PW 5/4 showing "(a) The Governor should give the land required by the Conservator of Forests and the land Revenue of the land which has come under the timber depot should be remitted." Thereafter the order recorded is "The proposal ofthe Settlement Commissioner is accepted. The Revenue Department shall comply."

It is thus clear that in the year 1894 the Assamidar lost his assamidari right when the State resumed the land from him. There was no

law prevalent then that compensation was to be compulsorily given.

It depended upon the sweet-will of the Riyasat to give some other land in lieu of the land acquired. In this case also it appears only the land revenue was remitted. And probably, as documents indicate, compensation was also paid for the standing crops in the land. But what is clear to us with certainty is that no right was left in the land holder in respect of which he could acquire a better right on the basis of the report of the Glancy Commission in 1932 as has been remarked by the learned Trial Judge. Whatever right was possessed by the respondent's ancestor was de.ad and gone in the year 1894.

Ext. P. W. 14/2 is Intikhab Jamabandi Mauza Chawni Badam Singh Tehiil. In the remarks column the note made runs thus :-

"By order of Durbar No. 2381 dated 5th Assuj '55 the total area of village has been excluded from the land revenue, and the total land of this village !las come under the timber depot and therefore the total land has been recorded as Khalsa. The original file has been returned to Durbar on 29th Assuj after necessary action.

Dated 29th Assuj '55."

The year '55 is samvat year 1955 which will roughly correspond to

1897. Thus there is no doubt that the land was resumed by the Durbar from the ancestor of the respondent before the end of the 19th century and it was recorded as 'Khalsa'. The land had become the

State land in the full sense of the term and belonged to the State since then. No semblance of any right title or interest was left in the respondent's ancestor thereafter.

Yet after 60 years the matter was re-agitated by the respondent by claiming compensation in respect of the land which had been taken possession of long ago by the State. The respondent did not claim that any right title or interest was left in him. He merely wanted on compassionate grounds compensation for the land. One can understand if on compassionate grounds some compensation with reference to the year when the land was taken possession of could be determined and paid. But that was not done. A very queer procedure was adopted of acquiring the land under the State Land Acquisition Act afresh thus determining the compensation on the basis of the market value of the land prevailing 60 years later. We have gone through the letter dated 17-12-1954 Ext. P.W. 14/A written by Tehsildar; the Patwari's Report dated 12-4-1955 Ext. D.W.4/A; the Tehsildar's Report dated 21-4-55 Ext. P.W. 19/B/2; letter dated 3-5-55 Ext. D.W.12/1 written by the Deputy Commissioner to the Commissioner; Ext. P.W.

1/2 the letter dated 2·6-1955 written by the Conservator of Forests to the Chief Conservator of Forests; the Office Note dated 9-6-1955 Ext.

P.W. 1/3 and Chana's letter dated 22-6-1955, Ext. P.W. 1/5. On going through these documents it appears to us that under the influence of some high-ups a case was made out for payment of compensation to the respondent in respect of the land acquired 60 years ago by acquiring it again which naturally led to the determination of the market value of the land in or about the year 1955. , The State Exchequer cannot be made to suffer for such wanton and illegal actions of its officers. The land had been resumed long ago. It belonged to the State. The whole proceeding of land acquisition was a nullity. The Award resulting therefrom was also ultra vires and a nullity. It mattered little whether the proceeding was taken as a result of the fraud or mistake or otherwise. We are accepting the findings of the courts below that the respondent had not practised and fraud nor was the land acquisition proceeding started as a result of any mistake of fact.

It was either as a result of gross negligence or a deliberate act on the part of the officials at the instance of some high-ups to help the respondent. It is well-settled that there is no question of any acquisition of the State's own land as was purported to be done in this case.

In The Government of Bombay v. Esufali Sa/ebhai(l) it has been observed at page 624 thus :-

"It is quite true that there can be no such thing as the compulsory acquisition ofland, owned by and in the ; occupation and control of the Crown. The Land Acquisition Act cannot apply to such lands, because all Crown lands being vested in the Government, they are competent and free to devote any of those lands to a public purpose.

It is a contradiction in terms to say that the Government are compulsorily acquiring that which they have already acquired otherwise, both as to title and possession."

The same view has been taken in Mohammad Wajeeh Mirza v. Secretary of State for India in Counci/(2) when at page 33 the passage from the jud, gment of Chandavarkar J. extracted above was quoted with approval. In the case of The Deputy Co!/ector, Ca!icut , Division v.

Aiyavu Pi/lay and others(l) Wallis J. of the Madras High Court, in our opinion, correctly observed-"lt is, in my opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired

(I) I, L. R. XXXIV Bombay, 618.

(2) A.LR. 1921 Oudh, 31

(3) IX Indian Cases, 341.

under the Act but only for the acquisition of such interests in the land. as do not already belong to Government." Venkatarama Ayyar J. speaking for. this Court in The Collector of Bombay v. Nusserwanji Rattanji Mistri & others(l) after quoting the above passage of Wallis, J. from the Madras decision aforesaid remarked at page 1322-"With these observations, we are in entire agreement" and added "When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its o\vn."

The Courts below have heavily relied upon the decision of the Bombay High Court in Secy. ofpState v. Tayasaheb Yeshwantrao Ha/kar.(2) This decision, in our opinion, is clearly distinguishable.

Firstly the principle in the case of Marriot v. Hamoton(l) which was applied in the Bombay case is not applicable in the present case. Tn the Bombay case the money under the land acquisition Award had been paid and the suit was for its recovery back. In that situation it was held that what was paid under the compulsion of law, namely, the land acquisition Award, cannot be recovered back. In the instant case the money has not yet been paid. The suit is for the cancellation of the Award which is a nullity. The second point of distinction between the Bombay case and the present case is that in the former though the title belonged to the Government, possession was with the other side. In the land acquisition proceeding possession was acquired on payment of compensation. In that event it was held that money paid was not under any mistake of fact or law. It was paid for divesting the defendant of his possession. In the instant case neither title nor possession was with the defendant. The entire bundle of right~ in the land had vested in the State loug ago and there was nothing left to be acquired. In such a situation the High Court was wrong iR following the Bombay decision and in applying its ratio to the facts of this case.

We may briefly dispose of the point of estoppel and res-judicata.

We approve of the view taken by Anant Singh, J. in that regltrd. We may also add that the plea taken in the appeal by filing a petition under Order 41, Rule 27 or in the review matter in the High Court was beyond the scope of the appeal filed under the State Land Acquisition Act.

The scope of that appeal was the determination of the amount of compensation and not to declare the whole of the land acquisition

(I) [1955] I S.C.R. 1311.

(2) A. I. R. 1932, Bombay, 386.

(3) (I 797) 2 Sm.L.C. 386.

...

J. & K. v. SAN AULLAH MIR (Untwalia, I.) 289

proceeding a nullity. Whatever, therefore, was said by the High Court A either in appeal on the question of adverse possession or while reject•

ing the review petition was outside the scope of the land acquisition appeal. It could not operate as res-judicata in the present suit. The observations of the High Court were without jurisdiction. Nor did arise any question of estoppel in this case because the respondent was not made to change his position by starting the land acquisition pro- B ceeding against him. He had already lost his land. He merely wanted compensation. The method adopted for the payment of compen• sation was wholly ultra vires and without jurisdiction. That being so no question of estoppel arose in this case.

For the reasons stated above, we allow this appeal; set aside the C judgments and decrees of the High Court; decree the plaintiff's suit; declare the land acquisition proceeding and the Award or the decree made thereunder as nullities. Since the defendant-responde; it has been unnecessarily harassed in the suit by the wrong and illegal actions of the authorities of the State, we direct that the plaintiff-appellant will get no costs. On the other hand, the defendant-respondent will D get costs of the suit and the appeals in all the three courts, namely, the Trial Judge, the Division Bench and this Court.

N.K.A.

Appeal allowed.

STATE OF JAMMU & KASHMIR

SANAULLAH MIR

A. C. GUPTA

Section 4

Order 41 Rule 27

C.P.C

order 41 Rule 27

CIVIL APPBLLATB JURISDICTION

G G. L. Sanghi

V. K. Boone

Narain

Gopi Nath Kunzru

K. L. Taneja

S. L. Aneja

UNTWALJA

Srinagar

Jammu & Kashmir

Central Land Acquisition Act, 1894

s. 4

High Court of Jammu & Kashmir

Jammu

Mian Jalalud-Din

Anant Singh

Miao Jalal-ud-Din

Mian Jalal-ud-Din

Arrant Singh

Forest Department

Durbar

Chana

Chandavarkar

Wallis

Madras High Court

Venkatarama Ayyar

Madras

Bombay High Court

Bombay

Order 41, Rule 27


STATE OF KERALA & ORS. ETC.

T. N. PETER & ANR. ETC.

April I 1980 • (V. R. KRISHNA IYER AND 0. CHrnNAPPA REDDY, JJ.]

Cochin Town Planning Act-S.34(1) validity of.

The Cochin Town Planning Act in particular contemplates the creation of a town planning trust, the preparation of town planning schemes (section 12) acquisition of lands in this behalf (section 32) compensation for such compul C sory taking (section 34) and modifications in the manner of acquisition and the mode of compensation in the Kerala Land Acquisition Act.

The petitioners' writ petitions challenging the validity of the Town Planning Act were allowed by the High Court on the gronnd that the provisions of Section 34(1) and 34(2A) were unconstitutional being violative of article 14 of the Constitution.

D In appeal to this Court it was contended that by the use of the provisions for making schemes under section 8 or section 10, the authority may indefinitely immobilize the owner's ability to deal with his land since section 15 clamps restrictions and this is unreasonable.

HELD : 1. City improvement schemes have facets which mark them out from other land acquisition proposals. To miss the massive import of the z specialised nature of important schemes is to expose one's innocence of thedynam.ics of urban development. The statute has left it to the government to deal expeditiously with the scheme and there are sufficient guidelines in the Act not to make the gap between the draft scheme and governmental sanction too procrastinatory to be arbitrary. [294 G-H]

2. Section 12(6) imparts :finality to the scheme and this corresponds to the declaration under section 6 of the Land Acquisition Act. A conspectus of the relevant provisions of the Act makes it clear that improvement scheme cannot hang on indefinitely and an outside limit of two years is given for the preparation and publication of draft schemes from the time the initial resolution to make or adopt the scheme is passed by the Municipal Council. Conceptwise and strategy-wise dt:velopment schemes stand on a separate footing and classification of town planning schemes differently from the routine projects demanding compulsory acquisition may certainly be justified as blised on rational differentia which has a reasonable relation to the end in view namely improvement of towns and disciplining their d'evelopment. (295 F-G]

3. There is no substance in the argument that if the land is acquired under the Town Planning Act no solatium is payable while if the land is acquired under the Land Acquisition Act it is a statnlory obligation of the acquiring government to pay solatium. The Town Planning Act is a special statute where lands have to be acquired on large scale and as early and as quickly as possible so that schemes may be implemented with promptitude. There isin addition a specific and, purposeful provision excluding some sections of the-

STATE V. T. N. PETER 291

Kerala Land Acquisition Act. In such circumstances it is incredible that the A authority acting under the Act will sabotage chapter VII, in particular section 34, by resorting to the Kerala Land Acquisition Act in derogation of the express provision facilitating acquisition of lands on less onerous terms. [299C-D]

Magan/al v. Municipal Corporation, [1975] I S.C.R. p. 23, referred to.

4. The amount of compensation payable has no bearing on the distinction B whether the lands are acquired for housing or hospital, irrigation schemes or town improvement, school building or police station.

S(a) The exclusion of section 25 of the Land Acquisition Act from section 34 of the Act is unconstitutional.

But it is severable. [302G]

(b) The only discriminatory factor as between section 34 of the Act and section 25 of the Land Acquisition Act vis-avis quantification of compensation C is the non-payment of solatium in the former case because of the provisions of section 34(1) and that section 25 of the Land Acquisition Act shall have no application.

To achieve the virtue of equality and eliminate the vice of inequality what is needed is the obliteration of section 25 of the Land Acquisition Act from section 34(1) of the Town Planning Act.

The whole of section 34(1) does not have to be struck down.

Once the discriminatory and void part in section 34(1) of the Act is excised equality is restored. The owner will D then be entitled to the same compensation including solatium that he may be eligible under the land Acquisition Act.

[303E-F]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 848-850 of 1977.

From the Judgment and Order dated 16-7-1976 of the Kerala E High Court in W.A. Nos .. 910, 194 and 253/75.

AND

CiVlL APPEAL Nos, 666-669 of 1978.

From the Judgment and decree dated 8-6-1977 of the Kerala High F Court in W.A. Nos. 364-365, 472 and 473 of 1975.

P. Govindan Nair and K. R. Nambiar for the Appellants in CAs. 848/77 _and 666-667 /78 and for Respondents 2 to 4 in CA 849 /77 and 2-3 in CA 850/77.

M. M. Abdul Khader and N. Sudhakaran for the Appellant in CAs. 849-850/77 and Respondent 2 in CA 848/77 and RR! in CA 666/78, 667 /78 and RR 2 in CA 668-669/78.

T. S. Krishnarr.oorthy Iyer, T. P. Sundara Rajan and P. K. Pillai for Respondent No. 1 in 848/77.

T. L. Vishwanath Iyer, and S. Baiakrishnan for the Respondent No. I in CAs. 668-669/78 and RR 2 in CAs. 666-667 /78.

The Judgment of the Court was delivered by

KRISHNA IYER, J. Law and development, as yet a Cinderella of our corpus juris, is a burgeoning branch of creative jurisprudence which needs to be nourished with judicious care, by courts in developing countries. The Town Planning Act, a developmental legislation amended and updated by the Kerala Legislature, was designed to draw up plans and to execute projects for the improvement of the towns and cities of that over-crowded State with its populous multitudes uncontrollably spiralling, defying social hygiene and economic engineering. Although the Act is of 1932 and originally confined to the Travancore portion of the Kerala State, it has received amendatory attention and now applies to the whole of Kerala with beneficial impact upon explosive cities like Cochin. This legislation, naturally, has made some deviation from the Kerala Land Acquisition Act, 1961, but having received insufficient attention from the draftsman on constitutional provisions, has landed the Act in litigation through a challenge in the High Court where it met with its judicial Waterloo when a Division Bench invalidated Section 31(1) and 34(2A) which were the strategic provisions whose 'exit from the statute would virtually scotch the whole measure. The State of Kerala has come ap in appeal, although the immediate victim is the Cochin Town Planning Trust.

The schematic projection of the Town Planning Act (the Act, for short) may be a good starting point for the discussion of the submissions made at the Bar. The Act, with a prophetic touch, envisions explosive urban developments leading to terrific stresses and strains, human, industrial and societal. Land is at the base of all development, and demand for the limited space available in the cities may so defile and distort planned progress as to give future shock nnless scientific social engineering takes hold of the situation. The State of its specialized agencies must take pre-emptive action and regulate the process of growth. The Act fills this need and contemplates the creation of a Town Planning Trust, preparation of town planning schemes, acquisition of lands in this behalf, compensation for betterment by citizens and other miscellaneous provisions, apart from creation of development anthorities. While this is the sweep of the statute, our concern is limited to schemes sanctioned by Section 12, acquisition of lands for such schemes under Section 32, compensation for such compulsory taking under Section 34 and the modifications in the manner of acquisition and the mode of compensation wrought into the Land Acquisition Act by the above provisions of the Town Planning Act. It is indisputable that the compensation payable and certain other matters connected therewith, differ as between the provisions in this Act and the Land Acquisition Act. The latter is more beneficial

.....

to the owner and the challenge, naturally, has stemmed from this allegedly invidious discrimination. In two separate cases, two judges upheld the challenge and, on appeal, the High Court affirmed the holdings that the provisions of Sub-section 34(1) and 34(2A) were unconstitutional, being violative of Article 14. Hence these appeals.

We will now proceed to scan the substance of the submissions and

JI, the reasoning in the High Court's judgment.

Counsel for the State, Shri P. Govindan Nair, supported by counsel for the Trust, Shri Abdul Khader, have canvassed the correctness of the reasons which have appealed to the High Court, and some decisions of this Court have been brought to our notice in this con- C nection. The owners of the lands acquired have been represented before us by Sri T. C. Raghavan who has, in his short submission, supported the judgment under appeal. One of the appeals has become infructious, because the State, after the High Court invalidated Section 34 of the Act, proceeded under the Land Acquisition Act, acquired the land, paid compensation and took possession thereof, I> thus completely satisfying the land owner. Shri T. S. Krishnamurthi Iyer, appearing for the owner, pointed out this circumstance and so we dismissed that appeal but mention it here because Shri T. C. Raghavan has relied on this fact in support of one of his arguments, as we will presently disclose. Before entering into the merits, we may recall the submissions of Shri T. L. Viswanathan, a young lawyer from E Kernla, who made us feel that orality, marked by pointed brevity and suasive precision, is more telling than advocacy with counter-productive prolixity. Although the responsible scrutiny that a bench decision of the High Court deserves has been bestowed, we are unable to support the judgment under appeal or the arguments of counsel in support.

The controversy regarding the vires of Sec. 34 revolved round a few points. Before us, Art. 14 has loomed large and a submission has been made that by use of the provisions for making schemes under Sec. 8 or Sec. IO the authority may indefinitely immobilise the owner's ability to deal with his land since Sec. 15 clamps restrictions, and this is unreasonable.

We agree that it is a hardship for the owner of the land if his ability to deal with his property is either restricted or prevented by a notification, and nothing happens, thereafter, leaving him guessing as to what the State may eventually do. Indeed, if such a state of suspense continues for unlimited periods, it may be unreasonable restriction on the right to property, although currently the right to pro-

I F

294 SUPREME COURT REPOlUS l l 980] 3 S.C.R.

perty itself has been taken away from Part III. That apart, we must see whether there is any justifiable classification between common cases of compulsory acquisition under the Land Acquisition Act and the special class of acquisitions covered by the Town Planning Act which may furnish a differentia sufficient to repel the attack of Article 14. Section 15 of the Act forbids dealings by the owner in many ways, once the publication of a notification is made. The grievance particularised by Shri Raghavan is that after a draft scheme has been prepared by the municipal council and published, it becomes operational only on the sanction by Government but there is no time limit fixed in Sec. 12 within which Government shall sanction. Supposing it takes several years for Government to express its approval or dis-approval, the owner may suffer.

We regard this grievance as mythical, not real, for more than one reason. The scheme is for improvement of a town and, therefore, has a sense of urgency implicit in it. Government is aware of this import and it is fanciful apprehension to imagine that lazy insouciance will make Government slumber over the draft scheme for long years.

Expeditious despatch:is writ large on the process and that is an in-built guideline in the statute. At the same time, taking a pragmatic view, no precise time scale can be fixed in the Act because of the myriad factors which are to be considered by Government before granting sanction to a scheme in its original form or after modification. Section 12 and the other provisions give us some idea of the difficulty of a rigid time-frame being written into the statute especially when schemes may be small or big, simple or complex, demanding enquiries or provoking discontent. The many exercises, the differences of scale, the diverse consequences, the overall implications of developmental schemes and projects and the plurality of considerations, expert techniques and frequent consultations, hearings and other factors, precedent to according sanction are such that the many-sided dimension of the sanctioning process makes fixation of rigid time limits by the statute an impractical prescription. As pointed out earlier, city improvement schemes have facets which mark them out from other land acquisition proposals. To miss the massive import and specialised nature of improvement schemes is to expose one's innocence of the dynamics of urban development. Shri Raghavan fairly pointed out that, in other stages, the Act provides for limitation in time (for example, sec. 33 which fixes a period of three years between the date of notification and the actual acquisiton). Only in one minimal area where time-limit may not be workable, it has not been specified. The statute has left it to Government to deal expeditiously with the scheme and we see sufficient guideline in the Act not to make the gap between the

draft scheme and governmental sanction too procrastinatory to be A arbitrary. We need hardly say, that the court is not powerless to quash and grant relief where, arbitrary protraction or mala fide inaction of authorities injures an owner.

An aside : We are surprised at the obsolescent and obscurantist vocabulary surviving in the Town Planning Act because there are many B feudal and incongruous expressions such as 'our Governments and references to a Land Acquisition Act which has already been repealed by the Kerala Land Acquisition Act, 1961. Modernisation is a pro cess necessary even for the statute book and yet it has not been done, despite opportunity for the legislature, while amending later, to carry out such simple, verbal and yet necessary changes. Be it remembered C that the Town Planning Act did undergo an extensive amendment as late as 1976 when, surely, some of the verbal replacements could easily have been made. Medievalism lingering in legislations is hardly a tribute to the awareness of our legislators.

Section 12 of the Act provides for publishing the draft schemes so that objections or suggestions may be put forward by affected per sons. The scheme is then passed by the Municipal Council, of course, after considering objections and suggestions. Thereupon, it is sub

mitted to the Government for sanction and the fact of such submis sion is also published so that the public may still raise objections or make suggestions to Govt. which will consider them, make further inquiries, if necessary, and ultimately sanction the scheme with or without modifications or may even refuse sanction or return the scheme to the Council for fresh consideration. Once the scheme is sanctioned by the Government, it is again published. Section 12(6) imparts finality to the scheme and this virtually corresponds to the declaration under sec. 6 of the Land Acquisition Act. Chapter III of the Act is comprehensive and complex because the subject of scheme-makinlf

liemands expert attention and affects community interest. A Director of Town Planning is appointed who shall be consulted by Munici pal Councils in matters of town planning. Developmental schemes are not sudden creations. On the other hand, the Municipal Council first decides to prepare a scheme, adopts a draft scheme, if any, made by the owners of the lands, prepares the necessary plan of the lands which is proposed to be included in the scheme and notify its reso lution for public information. A copy of the plan is kept for the inspection of the public. Since all improvement schemes are matters of public concern, on the passing of a resolution and its notification under sec. 8, a time-bound obligation is cast on the Municipal Council by s. 9, which reads thus :

A "S. 9 ; Publication of draft scheme :

(1) If the resolution is to make a scheme, municipal council shall, within twelve months from the date of the notification under s.8 or within such further period not exceeding twelve months, as our Govermnent may allow, and after consulting, in the prescribed manner, the owners of lands and buildings in the area affected, prepare and publish a draft scheme."

It is apparent that improvement schemes cannot hang on indefinitely and an outside limit of 2 years is given for the preparation and publication of draft schemes from the initial resolution to make or adopt the scheme is passed by the Municipal Council. Government itself may step in and direct the Municipal Council to prepare schemes and sec. 10 empowers it in this behalf. Sec. 11 contains detailed provisions regarding the material to be included in the draft scheme.

These are preparatory exercises, and then comes the sanction of the scheme by the Government under Sec. 12. We indicate the elaborate character of the strategy, stages, contents and character of schemes for improvement and the opportunities for objections and suggestions to the public and the consultation with technical experts and Government, time and again, only to emphasise the complex nature of modern urban development schemes which makes it a different category altogether from the common run of 'public purposes' for which compulsory acquisition is undertaken by the State. Conceptwise and strategywise, development schemes stand on a separate footing and classification of town planning schemes differently from the routine projects demanding compulsory acquisition may certainly be justified as based on a rational differentia which has a reasonable relation to the end in view viz., improvement of towns and discipling their development.

Once this basic factor is recognised, the raison detre of a separate legislation for and separate treatment of town planning as a special subject becomes clear. It was pointed out that under the Kerala Land Acquisition Act, there is a time limit of 2 years written into Section 6 by engrafting a proviso thereto through an amendment of 1968 Act (Act 29 of 1968). Section 6 deals with a declaration that land is required for a public purpose and the relevant proviso thereto reads :

"S.6(i) Proviso :

Provided that no declaration in respect of any particular land covered by a notification under sub-section (l) of

Sec. 3 shall be made after the expiry of two years from the A date of publication of such notification."

An argument was put forward that under the Land Acquisition Act there is thus a protection against unlimited uncertainty for the owners once Jands are frozen in the matter of dealing with them by an initial notification. This protection against protraction and inaction on B the part of the State and immobilisation of ownership is absent in the Town Planning Act. According to Mr. T. C. Raghavan, appearing for sorre respondents, this makes for arbitrariness and discrimination invalidatory of the relevant provisions of the Town Planning Act.

In our view there is no substance in this submission, having regard to the specialised nature of improvement schemes and the democratic 0 participation in the process required in such cases. We repel the submission ..

Much argument was addressed on the 'either or' arbitrariness implicit ins. 33 of the Act. The precise contention is that it is open to the Trust to acquire either under the Kerala Land Acquisition Act or under Chapter VII of the Town Planning Act. In the latter event, no solatium is payable while under the former statute it is a statutory obligation of the acquiring Govt. Thus, if an Authority has an option to proceed under one statute or the other and the consequences upon the owner are more onerous or less, such a facultative provision bears the lethal vice of arbitrariness in its bosom and is violative of Art. 14 and is therefore, void. Section 32 of the Act is the foundation for this argument and reads thus :

32. Modification of Land Acquisition Act :

Immovable property required for the purpose of town planning scheme shall be deemed to be land needed for a purpose within the meaning of the Land Acquisition Act, XI of 1089, and may be acquired under the said (Act) modified in tbe manner provided in this chapter.

What is spun out of the words used is that for the purposes of town planning schemes an immovable property "may be acquired under the said Act (The Land Acquisition Act) modified in the manner provided in this Chapter". Of course, Chapter VII, particularly sub-sec. (I) of s. 34 thereof, relates to compensation and does not provide for payment of solatium. Moreover, it is mentioned that the provisions of ss. 14, 22 and 23 (both sides agree, this should be read a> Sec. 25) of the Land Acquisition Act shall have no application in the acquisition of prcperty for the purpose of the Town Planning Act.

2Q-189SCI/80

SUPREME COURT REPORTS [1980] 3 S.C.Jt.

We do not accept the argument that there is a real option for the authority to acquire either under the Land Acquisition Act or under the Town Planning Act when land is needed for a scheme. Theoretically, yes, but practically, no. Which sensible statutory functionary, responsible to the Treasury and to the community, will resort to the more expensive process under the Land Acquisition Act as against the specially designed and less costly provision under s. 34? Fanciful possibilities, freak exercise and speculative aberrations art not realistic enough for constitutional invalidation on the score of actual alter· natives or alive options, one more onerous than the other. ln Magan lal's case, the Court pointed out : (l-)

"The statute itself is the two classes of cases before us clearly lays down the purpose behind them, that is premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorised persons occupying them. This is a sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given. in the statutes one expects the officers concerned to abail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil Court. . Even normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be a prolonged one, to resort to the latter. Administrative officers, no less than the courts, do not function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Govt. property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of lliscrimination but the real risk of discrimination that we must take into account.

This 1s not one of those cases where discrimination is writ large on the face of the statute. Discrimi-

(1) Magnnlalv. Munic Corporation, [1975] t S.C.R. p. 23.

) "'-'

STATE v. T. N. PETER (Krishna Tyer, J.)

nation may be possible but is very improbable. And if there is discrimination in actual practice this Court is not powerless. Furthermore, the fact that the Legis: lature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorized occupants of Govt. and Corporation property and provided a special speedy prncedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We. therefore, find ourselves unable to agree with the majority in the Northern India Caterers' case."

- The same reasoning applies to the present situation. The Town Planning Act is a special statute where lands have to be acquired on a large scale and as early and quickly as possible so that schemes may be implemented with promptitude. What is more, there is a specific and purposeful provision excluding some sections of the Kerala Land .Acquisition Act.

Jn such circumstances, it is incredible that the authority acting under the Act will sabotage Chapter VII, in particular s. 34, by resorting to the Kerala Land Acquisition Act in derogation of the express provision facilitating acquisition of lands on less onerous terms. He functions under the Town Planning Act, needs lands for the schemes under that Act, has provisions for acquisition under that Act. Then would be, by reckless action, travel beyond that Act and with a view to oblige the private owner betray the public interest and resort to the power under the Land Acquisition Act, disregarding the non obstante provision in Sec. of the Act? Presumption of perversity cannot be the foundation of unconstitutionality. Moreover, the expression, used in the context of s. 32, clearly does not bear the meaning attributed to it by the counsel for the respondents.

All that it means is that when immovable property is found necessary for the purpose of a 'scheme' it may be acquired by the compulsory process written into s. 32. It is, as if there were only one option, not two. If the scheme is to be implemented, the mode of acquisition shall be under s. 32 and the manner of such acquisition is the same under the Land Acquisition Act minus ss. 14, 22 and 25 thereof. A slight reflection makes it clear that the mode prescribed is only one, and so the theory of alternatives one of which being mere onerous than the -0ther, and the consequent inference of arbitrariness, cannot arise.

We overrule that argument.

We must notice, before we part with this point, the argument of Sri Raghavan for the respondents that the existence of alternatives

is not theoretical nor chimerical but real, and proof of the pudding is II in the eating.

He pointed to one of the appeals in this batch where the proceedings under sec. 34 of the Act were given up, the provision

of the Land Acqnisition Act used, and full compensation and so la ti um paid to the owner. This instance gave flesh ar.d blood to the submission about discrimination. Shri Khader, for the trust countered this argument by stating that because the High Court struck down the Act and the land was needed. the only statute then available to the State was the Land Acquisition Act. So, the authority was reluctantly constrained to notify and acquire under the Land Acquisition Act.

Had Sec. 34 of the Act been available, this step would not have been taken and absent Sec. 34 the argument of alternatives has no basis.

We agree with this reasoning and repel the submission of arbitrary power to pick and choose.

At worst, a swallow does not rr.ake a summer but we must warn that prodigal state action to favour some owner when sec. 34 has been resuscitated will be betrayal of public interest and invalidated as mala fide even at the instance of a concerned citizen. The legislature cannot be st11ltified by the suspicious improvidence, or worse, of the Executive.

The more serious submission pressed tersely but clearly, backed by a catena of cases, by Shri Viswanathan merits our consideration.

The argument is shortly this. As between two owners of property. the presence of public purpose empowers the State to take the lands of either or both. But the differential nature of the public purpose does not furnish a rational ground to pay more compensation fe>r one owner and less for another and that impertiner.ce vitiates the present measure. The purpose may be slum clearance, flood control or housing for workers, but how does the diversity of purposes warrant payment of differential scales or quantum of compensation where no constitutional immunity as in Art. 3!A, B or C applies? Public purpose sanctions compulsory acquisition, not discriminatory compensation, whether you take A's land for improvement scheme or irrigation scheme, how can you pay more or less, guided by an irrelevance viz. the particular public purpose? The State must act equ oily when it takes property unless there is an intelligent and intelligible differentia between two categories of owners having a nexus with the object, namely the scale of compensation. It is intellectual confusion of constitutional principle to regard classification good for one purpose, as obliteration of differences for unrelated aspects. This logic is neatly applied in a series of cases of this Court.

It is trite that the test to rebuff Art. 14 turns of the differentia visa-vis the object of the classification. In Vajarve.u Muda iar's case,(!) H the Court took the view, (on this aspect the decision is not shown to have been overruled) that where there is no rational relation in the

(I) P. v. Mudaliar v. Dy. Collector, [1965] 1 S.C.R. 634.

matter of quantum of compensation between one public purpose and another you cannot differentiate between owners. Whether you acquire for a hospital or university, for slum clearance or housing scheme, compensation cannot vary in the rate or scale or otherwise.

 "Out of adjacent lands of the same quality and value, one may be acquired for a housing scheme under the Amending Act and the other for a hospital under the Principal Act, out of two adjacent plots belonging to the same individual and of the same quality1and value, one may be acquired under the Principal and the other under the Amending Act. From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought to be achieved.

In Durganath Sharma's case, a special legislation for acquisition of land for flood control came up for consitntional examination.

We confine ourselves to the differentiation in the rate of compen. sation based on the accident of the nature of the purpose where the Court struck a similar note. In the l'vagpur Improvement Trwt case and in the Om Prakash case, this Court voided the legislation which provided differential compensation based upon the purpose. In the latter case the Court observed. :

"There can be no dispute that the 'Govt. can acquire land for a public purpose including that of the Mahapalika or other local body, either under the unmodified Land Acquisition Act, 1894, or under that Act as modified by the Adhiniyam. If it chooses the first course, then the land-owners concerned will be entitled to better com pensation including 15 % solatium, the potential value of the land etc. nor will there be any impediment or hurdle such as that enacted by s. 372(a) of the Adhiniyam in the way of such land owners, dissatisfied by the Collector's award, to approach the Court under s. 18 of that Act. .... It is not necessary to dilate further on this point at this matter stands concluded by this Court's decision in Nagpur Improvement Trust's case by the ratio of which we bound. It will be sufficient to close the discussion by extracting here what Sikri C.J., speaking for the Court in Nagpur Improvement Trust's case said :

"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 Govt. 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. Art. 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 Art. 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 classifications be made on the basis of authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement ::rust 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.

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."

The principle that may be distilled from these rulings and the ' basics of 'equality' jurisprudence is that classification is not permissible for compensation purposes so long as the differentia relied on has no rational relation to the object in view viz. reduction in recompense.

Is it rational to pay different scales of compensation, as pointed out by Sikri, C.J. in the Nagpur Improvement Trust case, depending on whether you acquire for housing or hospital, irrigation scheme or town improvement, school building or police-station? The amount of compensation payable has no bearing on this distinction, although it is conceivable that classification for purposes of compensation may exist and in such cases the statute may be good. We are unable to discern any valid discremen in the Town Planning Act vis-a-vis the Land Acquisition Act warranting a classification in the matter of denial of solatium.

We uphold the Act in other respects but not when it deals invidiously between two owners based on an irrelevant criterion viz. the acquisition being for an improvement scheme. We are not to be

.,,,;

understood to mean that the rate of compensation may not vary or must be uniform in all cases. We need not investigate this question further as it does not arise here although we are clear in our mind that under given circumstances differentiation even in the scale of com- . pensation may comfortably comport with Art. 14. No such circumstances are present here nor pressed. Indeed, the State, realising the force of this facet of discrimination offered, expilatory fashion, both before the High Court and before us, to pay 15% solatium to obliterate the hostile distinction.

The core question now arises. What is the effect even if we read a discriminatory design in Sec. 34? Is plastic surgery permissible or demolition of .the section inevitable? Assuming that there is an untenable discrimination in the matter of compensation does the whole of s. 34 have to be liquidated or severable portions voided?

In our opinion, scuttling the section, the course the High Court has chosen, should be the last step. The Court uses its writ power with a constructive design, an affirmative slant and a sustaining bent.

Even when by compulsions of inseverability, a .destructive stroke becomes necessary the court minimises the injury by an intelligent containment. Law keeps alive and "operation pull down" is de mode.

Viewed from this perspective, so far as we are able to see, the only discriminatory factor as between s. 34 of the Act and s. 25 of the Land Acquisition Act vis-a-vis quantification of compensation is the non-payment of solatium in the former case because of the provision in s. 34(1) that s. 25 of the Land Acquisition Act shall have no application. Thus, to achieve the virtue of equality and to eliminate the vice of inequality what is needed is the obliteration of s. 25 of the Land Acquisition Act from s. 34(1) of the Town Planning Act. The whole of s. 34(1) does not have to be struck down. Once we excise the discriminatory and, therefore, void part in Sec. 34(1) of the Act, equality is restored. The owner will then be entitled to the same compensation, including solatium, that he may be eligible for under the Land Acquisition Act. What is rendered void by Art. 13 is only to the extent of the contravention of Art. 14. The lancet of the Court may remove the offending words and restore to constitutional health the rest of the provision. .

We hold that the exclusion of Sec. 25 of the Land Acquisition Act from sec. 34 of the Act is unconstitutional but it is severable and we sever it. The necessary consequence is that s. 34(1) will be read omitting the words 'and s. 25' . What follows then? Section 32 obli- H gates the state to act under the Land Acquisition Act but we have struck down that part which excludes sec. 25 of the Land Acquisition Act

and so, the 'modification' 'no longer covers s. 25. It continues to apply to the acquisition of property under the Town Planning Act, Section 34(2) provides for compensation exactly likes. 25(1) of the Land Acquisition Act and, in the light of what we have just decided, s. 25(2) will also apply and "in additi9n to the [market value of the land as above provided, the court shall in every case award a sum of fifteen per cen tum on such market value in consideration of the compulsory nature of the acquisition!'

The upshot of this litigation thus is that the appeal must be allowed except to the extent that solatium shall be payable as under the Land Acquisition Act. Since the State has always been willing to pay that component and has repeated that offer even before us right from the beginning, we direct the parties to bear their respective costs,

P, B.R, Appeal allowed.

''y'

STATE OF KERALA & ORS. ETC

T. N. PETER & ANR. ETC

April I 1980 • (V. R. KRISHNA IYER

0. CHrnNAPPA REDDY, JJ.

Cochin Town Planning Act

section 12

section 32

section 34

Section 34(1) and 34(2A)

article 14

section 8

section 10

section 15

Section 12(6)

section 6

Kerala Land Acquisition Act

section 34

section 25

section 34

section 34

section 25

section 34(1)

section 25

section 25

section 34(1)

section 34(1)

section 34(1)

P. Govindan Nair

K. R. Nambiar

M. M. Abdul Khader

N. Sudhakaran

T. S. Krishnarr.oorthy Iyer

T. P. Sundara Rajan

P. K. Pillai

T. L. Vishwanath Iyer

S. Baiakrishnan

KRISHNA IYER

Travancore

Kerala

Cochin

Kerala Land Acquisition Act, 1961

Section 31(1) and 34(2A)

State of Kerala

Cochin Town Planning Trust

Section 12

Section 32

Section 34

Act and the Land Acquisition Act

section 34(1) and 34(2A)

Article 14

Abdul Khader

T. C. Raghavan

Section 34

T. S. Krishnamurthi Iyer

T. L. Viswanathan

E Kernla

Sec. 34

Art. 14

Sec. 8

Sec. 15

Article 14

Section 15

Raghavan

Sec. 12

Section 12

sec. 33

Section 12

Section 12(6)

sec. 6

Chapter III of the Act

sec. 8

s. 9

S. 9

sec. 10

Sec. 11

Sec. 12

Section 6

Section 6

Sec. 3

Art. 14

Section 32

Modification of Land Acquisition Act

s. 34

ss. 14, 22 and 23

Sec. 25

s. 34

Magan lal

Krishna Tyer

s. 34

functions under the Town Planning Act

s. 32

s. 32

s. 32

ss. 14, 22 and 25

sec. 34

Khader

Sec. 34

Sec. 34

sec. 34

Viswanathan

Art. 3

Art. 14

Vajarve.u Muda iar

[1965] 1 S.C.R. 634

Durganath Sharma

Om Prakash

Land Acquisition Act, 1894

s. 372(a)

s. 18

Nagpur Improvement Trust

Sikri

Art. 14

Art. 14

Article 14

Art. 14

Sec. 34

s. 34

s. 34

s. 25

s. 34(1)

s. 25

s. 25

s. 34(1)

s. 34(1)

Sec. 34(1)

Art. 13

Art. 14

Sec. 25

sec. 34

s. 34(1)

s. 25

Section 32

sec. 25

s. 25

Section 34(2)

s. 25(2)


KRISHAN LAL

STATE OF HARYANA

April 1, 1980

[V. R. KRISHNA !YER AND E. S. VENKATARAM.IAH, JJ.]

Indian Penal Cade 1860 (XLV of 1860) Section 376-Rape on young girl -Necessity of corroboration of girl's testimony-Nature and extent of corrcr boration necessary.

The prosecution alleged that a girl below 16 years of age was sleeping outside her hou•e with her family and that the petitioner in the comJ1"11Y of an C other (acquitted accused) carried her away under intimidation to a neigh.- bowing godown belonging to another acquitted accused and in that secluded

venue committed rape on the young woman and afteN\lirds put her back on her cot.

The trial court convicted the petitioner but on grounds of benefit of doubt acquitted the other accused. The High Court affirmed this order.

In thespecial leave petition to this Court, it was contended on behalf of the petitioner that the evidence of the prosecutrix without substantial corroboration, was inadequate to rest a conviction under section 376 IPC.

Dismissing the special leave petition,

HEID 1. To forsake vital consideration and go by obsolete demands for E substantial corroboration is to sacrifice commonsense in favour of an artificial <:oncoction called 'judicial' probability. [308A]

2. Human psychology and behavioural probability must be borne in mind when assessing the testimonial potency of the victim's version. What girl would foster rape charges on a stranger uriless a remarkable set of facts or clearest motives are made out? The inherent bashfullness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggres F tion are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim has corroboratb•e value. [3070] '1

3. The court loses its credibility if it rebels against realism. The Jaw court io not an unnatural world. [308 BJ

4. Merely because the trial court has ultra-cautiously acquitted someone, the higher court must, for that reason, cannot acquit everyone. [308CJ

5. A socially sensitized judge is a better statutory armour against gender <'41trag'e than Jong clauses of a complex section with oU the protections wri(

into it. [308C]

6. Observation on probative force of circumstances are not universal laws H of nature but guidelines and good counsel. [307 Fl

Gurcharan Singh v. State of Haryana AIR 1972 SC 2661 referred lo.

SUPREME COURT REPORTS

(1980) 3 S.C.R.

CRIMINAL

APPELLATE JURISDICTION: Special Leave Petition (Cr!.) 2599 of 1979.j

From the Judgment and OH'e(C:<~<d 9·7·1~~9 <f tre F1rj<b:rrd i Haryana High Court in Crl.A. 1228/1976.

S. K. Sabharwa/ and R. C. Kohli for the petitioner. i.

The Order of the Court was delivered by,

KRISHNA IYER, J, A rapist-if the concurrent findings of the courts below were correct has chosen to seek special leave to challenge his crime and punishment, and his counsel has attacked the ver diet of culpability as wholly unfounded. Indeed, it is redundant, and absent exceptional circumstances, out of bounds, for this Court, exercising its jurisdiction under Art. 136, to launch upon an explora tion and re-appreciation of the evidence, its strengths and weaknesses with a view to sit in judgment over the holdings of the High Court in affirmance of those of the trial Court.

Briefly, we will touch upon one or two circumstances without claiming to be exhaustive in any manner. One Shashi Bala of Ambala was sl.eeping, with her mother and other children, outside her house in hot July (1975). The petitioner, in the company of another (acquitted accused), carried her away under intimidation to a neighbouring godown belonging to one Tilak Raj (another acquitted accused) and in that secluded venue committed rape on the young women. After subjecting her to these beasteal acts of lust, Shashi Bala, who by then was nearly unconscious, was put back in her cot from where she had been' removed .. In the morning, the mother of the victim found blood on the daughter's salwar and thereupon she complainingly narrated the criminal assault of the previous night. On the return of the father, P.W. 7, who had been away, the victim went, in his company, to the police station, lodged a report which was followed by investigation and chargesheet. The Court, after a trial, convicted the present petitioner but, on grounds of benefit of doubt, acquitted the rest. Medical evidence showed that the raped girl was below 16 years of age. We are not too happy about the acquittal but since the State has not chosen to come up in appeal against the acquittal, we do not probe the matter further.i

Counsel for the petitioner persistently urged that the evidence of the prosecutrix, without substantial corroboration, was inadequato to rest a conviction under s. 376 I.P.C. He relied on observations of this Court in Gurucharan Singh v. State of Haryana (1) for the pro-

(!) A. I.~R.1972_S.C.2. 2661.

KRISHAN LAL v. HARYANA (Krishna Iyer, J) 307

position that although a prosecutrix is not an accomplice, her evidence, as a rule of prudence, is viewed by courts unfavourably unless reinforced by corroboration "so as to satisfy its conscience that she is telling the truth and that the present accused of rape on her has not been falsely implicated". It is true that old English cases, followed in British Indian courts, had led to a tendency on the part of judge- , made law that the advisability of corroboration should be present to the mind of the Judge "except where the circumstance make it safe to dispense with it". Case-law, even in those days, had clearly spelt out the following propositions ;

"The tender years of the child, coupled with other circumstances appearing in the case, such, for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there mnst, in every case, be corroboration before a conviction can be allowed, to stand."

"It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged."

Observations on probative force of circumstances are not universal laws of nature but guidelines and good counsel.

We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version.

What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of mesculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has correborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrents credence.

More than all, it ba!Hes belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments and injury in her private parts unless she has been subjected to the torture of rape. And if rape has been committed,

SUPREME COURT REP<YRTS

[1980] 3 S.C.R.

as counsel more or less conceded, why, of all persons in the world, should the victim hunt up the petitioner and point at him the accusing finger? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsence in favour of an artificial concoction called 'Judicial' probability.

Indeed, the court loses its credibility if it rebels against realism. The law court is not an unnatural world.

We are not satisfied that merely because the trial court has ultracautiously acquitted someone, the higher court must, for that reason, acquit everyone, Reflecting on this case we feel convinced that a socially sensitised judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it.

N.V.K.

Petition dismissed.

LAL

STATE OF HARYANA

April 1, 1980

Section 376

section 376

IPC

AIR 1972 SC 2661

S. K. Sabharwa/

R. C. Kohli

KRISHNA IYER

Art. 136

Shashi Bala

Ambala

Tilak Raj

s. 376

I.P.C

N.V.K.