STATE OF TAMIL NADU AND ANR. ETC.versusMAHALAKSHMI AMMAL AND ORS. ETC.

                STATE OF TAMIL NADU AND ANR. ETC.                                   A
                                v.
                MAHALAKSHMI AMMAL AND ORS. ETC.

                             NOVEMBER 16, 1995

               [K. RAMASWAMY AND B.L. HANSARIA, JJ.]                                B

          Land Acquisition Act, 1894-Sections 4( 1) and SA-Errata to notifica-
    tion-Effect of-Whether errata amounts to fresh notification-If seperate en-
~   quiry is required persuant to the errata.

          Land Acquisition Act, 1894-Section 9-llregularity in se1vice-Effect
                                                                                    c
    of

          Land Acquisition Act, 1894-Section 11-Notification punished in
    1978-Possession taken over in 1981-Award made in 199(}-Whether delay
    renders award invalid.                                                          D
          Land Acquisition Act, 1894-Section lfr-Possession-Taken by way of
    panchanama without taking over physical possession-If valid-Taking over
    physical possession-If necessary.

          Constitution of India-Article 14-Lands acquired for housing               E
    scheme-Some lands not acquired on grounds of pending litigation or be-
    cause they were inferior-Held, such exclusion is not discriminatory-Land
    Acquisition Act-Generally.

          The land of the respondents was acquired under the Land Acquisi-
    tion Act, 1894. The Notification under section 4(1) of the Land Acquisition     F
    Act, 1894 was published on 26.7.1978, the award made on 22.9.1986 and the
    possession taken over on 24.11.1986.

           The learned Single Judge of the High Court dismissed the writ
    petition of the respondent challenging the acquisition. The Division Bench
    quashed. the notification under section 4(1) as well as the declaration
    under section 6 of the Act on the ground that the scheme was vague.
                                                                                    G
                                                                                        •
          The appellants filed appeal by way of Special Leave Petition before
    this Court. During the pendency of the petition, this Court in State of Tamil
    Nadu & Ors. Etc. v. L. Krishnan & Ors. Etc., (1996) 1 SCC 250 decided the       H
                                        451
    452                  SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.

A question of vagueness against the respondent.
          Before this Court, the respondent raised the following arguments :

          1. Certain lands forming part of the same scheme were excluded
    from the notification whereas the land of the respondents were sought to
B   be acquired and therefore, the acquisition is discriminatory and violative
    of Article 14 of the Constitution of India.

          2. Certain lands not covered by the initial notification under section
    4(1) of the Land Acquisition Act, 1894 were sought to be included by
    publishing an errata. Therefore, the notification in respect of such lands
c   must be deemed to have been published after the errata. However, no
    seperate enquiry was. held in respect of these lands and therefore, the
    award is bad.

        . 3. Notices under sections 9 and 10 of the Land Acquisition Act, 1894
D   were served on 120 persons, including a dead person, in a single day.
    Therefore, the service was not valid.

          4. The panchanama of Land Acquisition taking over possession of
    the land even though the respondent remained in physical possession of
    the land is illegal.
E
          5. In case of sun-ey number 2/11, which was included in the notifica·
    tion by way of errata, the award was made on 31.8.1990 and therefore,
    from 1978 till 1990, the respondents were denied enjoyment of the lands.
    The award ought to be set aside on the ground of delay.                        ,.
F         Allowing the appeal, this Court

          HELD : 1. The Government laid down guidelines for exclusion of
    lands which are the subject matter of lay out approved by the Housing
    Board. The Government having realised the fault in issuing the above
G   guidelines, thereafter issued another order withdrawing all the guideline
    issued in the GOs referred to above with immediate effect. Thus, it could
    be seen that the Government itself having realised the misapplication of
    the guidelines laid by it and its disastrous effect on the execution of the
    Housing Scheme prepared by the Housing Board or entrusted to it by
    Government or local authorities, withdrew the GOs with immediate effect.
H   If the lands are excluded from the scheme, the entire scheme gets
                   STATE v. MAHALAKSHMI AMMAL                            453

frustrated. [4S6-E-G]                                                           A
       2. It is true that the Government having realised that the lands were
initially notified to be acquired but did not cover the survey Nos. being
situated in the adjacent villages, the errata notification was published and
included lands in Survey Nos. 2/S, 2/11 and 2/12. Once errata was publish-
ed, it dates back to the date of initial Section 4(1) notification, namely,     B
June 26, 1978. It cannot be considered to be a fresh notification issued
under section 4(1). It is not in dispute that the respondents, in fact, filed
their objections to the notice issued under section SA and Rule 3 of the
Rules made by the State Government. The respondents had the oppor-
tunity and, in fact, they did participate in section SA enquiry. Therefore,     c
the declaration made under section 6 of the Land Acquisition Act does not
get vitiated. [4S6-H; 4S7-A-B]

      3. Even if there is an irregularity in service of notice under sections
9 and 10 of the Land Acquisition Act it would be a curable irregularity and
on account thereof, award made under section 11 of the Land Acquisition D
Act does not become invalid. Award is only an offer on behalf of the State.
If compensation was accepted without protest, it binds such party but
subject to section 28A of the Land Acquisition Act. [4S7-E-F]

      4. Possession of the acquired land can be taken only by way of a          E
memorandum, Panchanama, which is a legally accepted norm. It would
not be possible to take any physical possession. Therefore, subsequent
continuation, if any, by the erstwhile owner is only illegal or unlawful
possession which does not bind the Government. [4S7-F-G]

       S. It is well settled law that publication of the declaration under      F
section 6 of the Land Acquisition Act gives conclusiveness to public pur-
pose. Award was made on September 26, 1986 and for survey No. 2/11
award was made on August 31, 1990. Possession having already been taken
on November 24, 1981, it stands vested in the State under section 16 of the
Land Acquisition Act free from all encumbrances and thereby the Govern-         G
ment acquired absolute title to the land. The initial award having been.
made within two years under section 11 of the Land Acquisition Act, the
fact that subsequent award was made on 31st August, 1990 does not render
the initial award invalid. [4S7-C-D]

      6. The respondents are adequately compensated for loss, if any, for       H
    454                    SUPREME COURT REPORTS ,[1995) SUPP. 5 S.C.R.

A denial of enjoying the lands from the date of taking possession till date of
    deposit. [458-A]

          State of Tamil Nadu and Anr. v. A. Mohammed Yousef and Ors.,
    [1991) 4 sec 224 and State of Tamil Nadu & Ors. Etc. v. L. Krishnan &
    Ors. Etc., [1976) 1 sec 250, referred to.
B
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11555 of
    1995 Etc.

         From the Judgment and Order dated 18.3.93 of the Madras High
    Court W.A. No. 1884 of 1987.
c
          C. S. Vaidyanathan and A. Mariarputham for the Appellants.

         S. Sivasubramaniam, Shanmughamoorthy and S.R. Setia for the
    Respondents.
D         The following Order of the Court was delivered :

          Delay condoned.

          Leave granted.
E         A notification under section 4(1) of the Land Acquisition Act, 1894
    (for short, 'the Act') was published in the State Gazette on July 26, 1978.
    An enquiry under section SA of the Act was made followed by a declara-
    tion under section 6 of the Act, published on June 3, 1980. The Amend-
    ment Act 68 of 1984 came into force with effect from September 24, 1984.
F   The Land Acquisition Collector made his award on September 22, 1986.
    The possession was taken on November 24, 1986. It would appear that in
    respect of Survey No. 2/11, a further award was made on 31st August, 1990.


          The respondents filed a writ petition under Article 226 of the Con-
G stitution in the High Court in 1987 challenging the validity of the notifica-
    tion under section 4(1) and the declaration under section 6 of the Act on
    the ground of delay in making the declaration. The learned single Judge in
    his qrder dated September 15, 1987, dismissed the writ petition on the
    ground of laches. The Division Bench following the judgment of this Court
H   in State ~f Tamil Nadu and Anr. v. A. Mohammed Yousef and Ors., [1991]
                  STATE v. MAHALAKSHMI AMMAL                          455

4 sec 224, allowed the writ petition holding that the scheme was vague A
and it quashed the notification published under section 4(1) and declara-
tion under section 6 of the Act on that basis. Since the controversy on the
question of vagueness and the failure to make the scheme was already
considered by a Bench of three Judges of this Court in State of Tamil Nadu
& Ors. Etc. v. L. Krishnan & Ors. Etc., JT (1995) 8 SC 1, on 1st November,
                                                                            B
1995, the judgment of the Division Bench can no longer be sustained.

      Shri S. Sivasubramaniam, learned senior counsel appearing for the
respondents contended that the Government having excluded the lands ~u
survey Nos. 197/2 etc. (which is marked 'A' in the plan submitted by the
respondents) and the lands covered in Survey No. 95/1 to an extent of one C
acre and four cents marked as 'B' in the same plan, the respondents are
also entitled to the exclusion of their land and the non-exclusion thereof
amounts to invidious discrimination. It is also further contended that in the
year 1976-1980 three G.Os. viz., MS No. 837 Housing dated June 15, 1976,
Ms. No. 413 Housing and U.D. dated 3rd March, 1979 and MS No. 57 D
Housing a UD dated January 12, 1980 having excluded some lands, the
respondents' lands, which form part of the scheme, also need to be ex-
cluded and, therefore, non-exclusion of the land marked 'G' in the plan
filed by them amounts to arbitrary exercise of power conferred under
sections 4(1) and 6 of the Act and is violative of Article 14 of the
Constitution. It is also further contended that the lands in Survey Nos. 2/5, E
2/11 and 2/12 were situated in Alegapuram Pudur Village and having
realised that these lands were not covered under the initial notification
under section 4(1), the errata having covered those lands, the notification
must be deemed to have been published after the errata was published.
Thereafter, no separate enquiry under Section 5A was conducted. A F
 declaration made under section 6 of the Act without conducting enquiry
under Section 5A is invalid in law. Notices under section 9 and 10 of the
Act were served on 120 persons in a single day including a dead person.
So service was not a valid one and the award under section 11 was non est.
It is also contended that the appellants having physically remained in G
possession of the lands, the Panchnama by Land Acquisition of taking
possession and handing it over to the Housing Board is also illegal. It is
further contended from 1978 till the date of making the award in 1990, the
respondents were denied enjoyment of the lands. Therefore, the delay itself
would be a ground to set aside the award. Alternatively, it is contended
that they should be compensated considerably by awarding interest there- H
    456                  SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.

A under. Mr. C.S. Vaidyanathan, the learned senior counsel appearing for
    the appellants resisted these contentions.

         Having considered the respective contentions of the counsel for the
 · parties, we see no force in any of the contention raised by Shri
   Sivasubramaniam. It is true that the lands marked 'A' and 'B' as per the
B respondents' plan appear to have been excluded. It would appear that as
   regards the land marked 'A', there is a litigation pending. As regards the
   land marked 'B', it appears to be far interior and we do not have any
   material, on the basis of which exemption came to be made. It is difficult
   for us to go into the validity or the purpose. The circumstances or reasons
c  for which the exemption came to be made to the land of an extent of one
   acre and four cents covered in Survey No. 195/1 etc. are also not available
   on record. With regard to the lands marked 'C' and 'D', it is seen that it
   was the Reference Court who excluded these lands, which is subject matter
   of appeals pending in the High Court. The exclusion of those lands cannot
D be a ground that the lands marked 'G' which are the subject matter in these
   appeal have also to be excluded.

           It is seen that in first two GOs, referred to earlier, the Government
    laid down guidelines for exclusion of lands which are the subject matter of
    lay out approved by the Housing Board. The Government having realised
E   the fault in issuing the above guidelines, thereafter issued order in G.O.
    No. 583 dated March 11, 1983 of the Housing and Urban Development
    Department withdrawing all the guidelines issued in the GOs referred to
    above with immediate effect. Thus, it could be seen that the Government
    itself having realised the misapplication of the guidelines laid by it and
F   disastrous effect' on the execution of the Housing Schemes prepared by
    Housing Board or entrusted to it by government or local authorities, it
    withdrew the GOs with immediate effect. It is seen that respondents' lands
    is abutting the road Omluer to Salem and practically it would be the gate
    way to the scheme. Under those circumstances, if the lands are excluded
    from the scheme, the entire scheme gets frustrated. Under those cir-
G   cumstances, we do not find any justification to direct the government for
    exclusion of the lands on the above grounds.

            It is true that the Government having realised that the lands were
    initially notified to be acquired but did not cover the Survey Nos. being
H   situated in the adjacent villages, the errata notification was published and
                       STATE v. MAHALAKSHMI AMMAL                             457

    included to lands in Survey Nos. 2/5, 2/11 and 2/12. Once errata was A
    published, it dates back to the date of initial section 4(1) notification,
    namely June 26, 1978. It cannot be considered to be a fresh notification
    issued under section 4(1). It is not in dispute that the respondents, in fact,
    filed their objects to the notice issued under section SA and Rule 3 of the
    Rules made by the State Government. Shri Sivasubramaniam, is unable to
                                                                                   B
    place before us the nature of the objections raised by the respondent-
    petitioners. But the fact remains that the respondents had the opportunity
    and, in fact, they did participate in section SA enquiry. Therefore, the
    declaration made under section 6 does not get vitiated.

           It is well settled law that publication of the declaration lHl.der section C
    6 gives conclusiveness to public purpose. Award was made on September
    26, 1986 and for Survey No. 2/11 award was made on August 31, 1990.
    Possession having already been undertaken on November 24, 1981, it stands
    vested in the State under section 16 of the Act free from all encumbrances
    and thereby the Government acquired absolute title to the land. The initial D
    award having been made within two years under section 11 of the Act, the
    fact that subsequent award was made on 31st August, 1990 does not render
    the initial award invalid. It is also to be seen that there is stay of dispos-
    session. Once there is stay of dispossession, all further proceedings neces-
    sarily could not be proceeded with as laid down by this Court. Therefore,
    the limitation also does not stand as an impediment as provided in the E
    proviso to section llA ·of the Act. Equally, even if there is an irregularity
    in service of notice under Sections 9 and 10, it would be a curable
    irregularity and on account thereof, award made under section 11 does not
    become invalid. Award is only an offer on behalf of the State. If compen-
    sation was accepted without protest, it binds such party but subject to F
    section 28A. Possession of the acquired land would be taken only by way
    of a memorandum, Panchanama, which is a legally accepted norm. It would

-   not be possible to take any physical possession. Therefore, subsequent
    continuation, if any, had by the erstwhile owner is only illegal or unlawful
    possession which does not bind the Government nor vested under section
    16 divested in the illegal occupant. Considered from this perspective, we G
    hold that the High Court was not justified in interfering with the award.

          Delay in making the first award is compensated by award of addi-
    tional amount under section 23(1A) and interest under section 28 of the
    Act as amended by Act 68 of 1984 which has taken care to set off the delay      H
    458                  SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.

A in making the award. Under these circumstances, the respondents are
    adequately compensated for loss, if any, for denial of enjoying the lands
    from the date of taking possession till date of deposit.

          Considered from these perspective, we are of the view that the order
    of the High Court made in Writ Appeal No. 1884 of 1987 on March 18,
B   1993 requires interference. It is accordingly set aside and the order of the
    learned single Judge stands restored.

         The appeals are allowed accordingly. The writ petitions stand dis-
    missed Parties are directed to bear their own costs .

    B.K.M.      ..                                            Appeals allowed.