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Muthyala Reddy Vs. State of Mysore Represented by the Chief Secretary to Government Vidhana Soudha, Bangalore and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 1934 of 1966
Judge
Reported inAIR1969Kant1; AIR1969Mys1; ILR1968KAR482; (1968)2MysLJ48
ActsCentral Land Acquisition Act, 1894 - Sections 4, 4(1) and 6; Land Acquisition (Amendment) Act, 1961 - Sections 16(1), 16(2), 17, 18 and 18(1) ; Constitution of India - Articles 19(1) and 31; Income-tax Act - Sections 34
AppellantMuthyala Reddy
RespondentState of Mysore Represented by the Chief Secretary to Government Vidhana Soudha, Bangalore and anr.
Excerpt:
property - constitutionality - section 4 of central land acquisition act, 1894 and section 16 of land acquisition (amendment) act, 1961 - whether section 16 (2) unconstitutional on ground that it restricts service of notice only on person whose name is entered in land revenue register and not other owners and occupiers - person whose property is to be acquired for improvement scheme or for public purpose has no right to particular procedure - further section 4 directs publication in gazette public notice and confers power on deputy commissioner to serve notice on owner or occupier - held, section 16 (2) not unconstitutional. held see paras 27, 32 and 33. - major port trusts act, 1963 [c.a. no. 38 of 1963]. sections 49-b, 50-a & 50-b: [a.s. bopanna, j]port dues held, it includes only..........this argument is constructed on the contrast between the provisions of section 4 of the central land acquisition act, 1894, which will be referred to as the land acquisition act, as extended to the new state of mysore by the land acquisition amending act, 1961, and the improvement act.5. now section 16(2) was introduced into the improvement act in the year 1952, and, when the scheme was published under section 16(1) of the improvement act, in the year 1963, there were two laws under which the acquisition of a property for a public purpose was possible. the one was the land acquisition act to which we had referred and the other was the improvement act.6. it was said that a person whose property was acquired under the land acquisition act was in a more advantageous position than he.....
Judgment:

1. It is not necessary in this writ petition to embark upon a discussion as to the meaning to be given to the words 'land revenue register' occurring in section 16(2) since no argument was presented about it. A discussion of that question is not necessary since on behalf of the petitioner, Mr. Mohandas Hegde did not assert that the petitioner's name had been entered in the land revenue register.

2. Now, section 16(2) on the constitutionality of which considerable argument was expended, provides principally for service of notices on persons interested in opposing the scheme for the implementation of which an acquisition is proposed to enable them to oppose the acquisition should they so desire.

3. It will be seen from its provisions that when a land is proposed to be acquired, the person on whom service of notice is enjoined by this sub-section is he whose name is entered in the land Revenue Register as the person primarily liable to pay the land revenue. It is that person who can object to the proposed acquisition and it is his objection that has to be considered and transmitted to Government under Section 17.

4. The argument advanced for the petitioner by Mr. Mohandas Hegde was that section 16(2) which restricts the service of notice only on the person whose name is entered in the land revenue register, is open to the denunciation that it makes a hostile discrimination against others as the owners and occupiers of the property proposed to be acquired. This argument is constructed on the contrast between the provisions of section 4 of the Central Land Acquisition Act, 1894, which will be referred to as the Land Acquisition Act, as extended to the new State of Mysore by the Land Acquisition Amending Act, 1961, and the Improvement Act.

5. Now section 16(2) was introduced into the Improvement Act in the year 1952, and, when the scheme was published under section 16(1) of the Improvement Act, in the year 1963, there were two laws under which the acquisition of a property for a public purpose was possible. The one was the Land Acquisition Act to which we had referred and the other was the Improvement Act.

6. It was said that a person whose property was acquired under the Land Acquisition Act was in a more advantageous position than he whose property was acquired under the Improvement Act in respect of notices which should issue before a final declaration is made by the appropriate authority that the acquisition is for a public purpose.

7. Section 18 of the Improvement Act and section 6 of the Land Acquisition Act are the two provisions under which that declaration is made as the case may be. Similarly, section 16(2) of the Improvement Act corresponds to S. 4(1) of the Land Acquisition Act. Section (16)(2) of the Improvement Act provides for the publication of a scheme, while section 4(1) of the Land Acquisition Act authorises a notification about the proposed acquisition.

8. Now, section 4(1) of the Land Acquisition Act as it now stands, provides for the publication of a preliminary notification and enumerates the powers of the officers. It will be seen from this section that when an acquisition of a property is proposed to be made under the Land Acquisition Act, the announcement that an acquisition is proposed to be made should be published in the official gazette, and in addition, the Deputy Commissioner should cause public notice to be given. These are the imperative provisions of section 4(1) of the Land Acquisition Act. That sub-section in addition provides that the Deputy Commissioner may cause notices to be served on the owner and the occupier as the case may be. It was argued on behalf of the Board that the word 'may' occurring in the concluding part of this sub-section in the context of these notices, when contrasted with the word 'shall' occurring in the earlier part, supports the interpretation that the Deputy Commissioner is invested with the discretion to serve those notices on the owner or the occupier and that the services of notices on them is not mandatory.

9. It will be recalled that section 16(2) of the Improvement Act also directs the publication of the scheme in the official gazette but does not direct any public notice such as the one which section 4(1) of the Land Acquisition Act directs.

10. Mr. Hegde who did not to any extent depend upon the absence of a direction for a public notice in section 16(2) of the Improvement Act, placed before us the postulate that section 16(2) is open to the condemnation that it is unconstitutional since the service of notices on owners and occupiers which is authorised by section 4(1) of the Land Acquisition Act was dispensed with by section 16(2) of the Improvement Act.

11. The stress of the argument was that the owner or the occupier of a land which is acquired under the Improvement Act is thus deprived of an opportunity to make his representation against the proposed acquisition while that opportunity is made available by the Land Acquisition Act. So, it was contended that a person whose property is expropriated under the Improvement Act and one in whose case the expropriation is proposed to be made under the Land Acquisition Act, although similarly situate, are subject to unequal treatment.

12. It was also maintained that an authority which makes an acquisition, performs a quasi-judicial function in deciding whether the acquisition is for a public purpose and that a decision which is not preceded by an opportunity to demonstrate that there is no public purpose is an infraction of the fundamental right created by Article 19(1)(g) of the Constitution. We were asked to say that section 16(2) which dispensed with notices to an occupier or owner was an unreasonable restriction on the exercise of that right.

13. The postulate that a decision on the question whether an acquisition is for a public purpose involved a quasi-judicial function, is, in our opinion, unacceptable. The enunciation by the Supreme Court in Jayantilal Amratlal v. F. N. Rana, : [1964]5SCR294 which Mr. Advocate General depends make it manifest that that function is an administrative function.

14. Article 31 of the Constitution authorises compulsory acquisition by the authority of law, and, such acquisition is possible only when the acquisition is for a public purpose and, the law authorising the acquisition also provides for payment of compensation. So, the fundamental right which can be asserted in the sphere of compulsory acquisition is the right to resist such acquisition when it is made except under the authority of a law which provides for compensation or when it is not made for a public purpose. The fundamental right created by Article 19(1)(g) to hold the property proposed to be acquired can have no relevance if the proposed acquisition does not infringe the fundamental right created by Article 31.

15. When a law authorises an acquisition for a public purpose and directs payment of compensation, there should be the formation of opinion by some designated instrumentality that there is a public purpose justifying the acquisition. The machinery for the formation of that opinion has to be created by the legislature which makes the law. But, whatever the machinery, the formation of the opinion is an administrative function according to the authoritative pronouncement of the Supreme Court. So, the argument that that opinion should be preceded by an opportunity for opposition, constructed on the supposition that a quasi-judicial function is involved, becomes groundless.

16. But, if a law nevertheless provides for an opportunity for opposition to the proposed acquisition, the right to that opportunity is not a fundamental right as contended but is a statutory right created by the law which brings it into being. If the statute provides none, it is not claimable of right. But, if it does, it is claimable only by those who are clothed with it.

17. Now, section 6 of the Land Acquisition Act authorises a declaration by Government that the land in respect of which there was a preliminary notification under Section 4 is required for a public purpose, and Section 6(3) provides that when that declaration is published in the official gazette, it constitutes conclusive evidence that the land is needed for a public purpose.

18. But the Improvement Act provides for an improvement scheme, and Section 16(1)(b) of that Act directs the publication of the scheme for that purpose. Section 17 insists on Governmental sanction for that scheme, and, when that sanction is accorded, that there has been such sanction shall be published in the official gazette as required by clauses (a) and (b) of Section 18(1). Clause (c) of that sub-section, provides that that declaration is conclusive evidence that the land is needed for a public purpose.

19. So, while under the Land Acquisition Act the publication of the declaration under Section 6(3) is preceded by a preliminary notification under Section 4 of that Act and the hearing of the objections under Section 5A, the declaration under Section 18 of the Improvement Act is preceded by the publication of the scheme under S. 16 and the hearing of objections under sub-section (2) of that section, and the accord of Governmental sanction under Section 17. Those preliminary steps to be taken in the one case are not the same as those which have to be taken in the other.

20. However that may be, the only argument maintained before us was that Section 16(2) of the Improvement Act subjects persons whose properties are proposed to be acquired under the Improvement Act to hostile discrimination, and that was the restricted submission made before us. So it becomes unnecessary to discuss the other variations between the preliminary procedure prescribed by the one Act and that prescribed by the other.

21. Section 16(2) of the Improvement Act whose constitutionality was assailed on that ground reads:

'16(2). Service of the Notices on owners of Property to be acquired in executing the scheme-- During the thirty days next following the day on which such notification is published in the Mysore Gazette, the Board shall serve a notice on every person whose name appears on the assessment list of the Corporation or the Municipality or local body concerned or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which it is proposed to acquire in executing the scheme or in regard to which the Board proposes to acquire such building or land or to recover such betterment fee for the purpose of carrying out an improvement scheme and requiring an answer within thirty days from the date of service of the notice stating whether the persons so served dissents or not to such acquisition of the building or land or to the recovery of such betterment fee, and if the person dissents, the reasons for such dissent.'

What is relevant for our present discussion in this context is that part of it which directs the service of notice on every person whose name appears in the land revenue register as being primarily liable to pay land revenue assessment.

22. This provision was contrasted with the provision in Section 4 of the Land Acquisition Act which authorises the Deputy Commissioner to serve notices on the owner, and on the occupier when the owner is not the occupier of the land. That there is no provision in S. 16(2) of the Improvement Act for service of notice on the owner or occupier was the foundation of the argument that the owner or occupier of a land is in a more advantageous position when the land is proposed to be acquired under the Land Acquisition Act, since the service of notice on the owner or occupier is not directed by section 16(2) of the Improvement Act.

23. We have already mentioned that it is not the petitioner's case that his name was entered in the land revenue register to which section 16 refers, as the person primarily liable to pay the land revenue, and so, no argument was advanced that there was any disobedience to the provisions of section 16(2). So we proceed to consider the argument of unconstitutionality.

24. Mr. Advocate General on behalf of the State Government and Mr. Ron on behalf of the Trust Board advanced the argument that the procedure prescribed for service of notices and the hearing of objections preceding the publication of a declaration under S. 6 of the Land Acquisition Act and under Section 18 of the Improvement Act as the case may be, constitute the procedure for the investigation of the question whether the land is needed for a public purpose, and that the mere act that the procedure prescribed by the one Act was at variance with that prescribed by the other, cannot support the argument of discrimination.

25. It was also urged that the purpose of the Improvement Act was not the same as the purpose of the Land Acquisition Act since the acquisition under the Improvement Act is authorised only for an improvement scheme, while the acquisition under the Land Acquisition Act could be made for any public purpose. So, it is contended that a person whose land is acquired under the Improvement Act does not occupy a position similar to that occupied by a person whose land is acquired under the Land Acquisition Act, and that it was open to the Legislature to prescribe the preliminary steps under the one law at variance with those prescribed under the other. It was said that the acquisition proposed to be made under the two laws is no more than a consequence emanating from the requirement which in the one case is not the same as in the case of the others.

26. We are of the opinion that the mere fact that eventually there can be an expropriation under both the laws cannot sustain the argument that the expropriation or acquisition should be made by adherence to the same kind of procedure under both. We accept the argument of Mr. Advocate General that the purpose of the Improvement Act is not the same as the purpose of the Land Acquisition Act, since the acquisition under the Improvement Act is permissible only when there is an improvement scheme, whereas the existence of a public purpose is sufficient under the Land Acquisition Act.

27. Moreover a person whose property is proposed to be acquired has no right to any particular procedure by adherence to which the conclusion is reached that it is required either for the improvement scheme under the one Act or for a public purpose under the other.

28. While the competence to enact the Improvement Act is bestowed by the 5th entry in the State List, the source of Legislative competence to enact the Land Acquisition Act is the 42nd entry in the Concurrent List. The 5th entry in the State List authorises legislation as respects 'improvement trusts' while the 42nd entry in the Concurrent List confers power to make a law with respect to 'acquisition and requisition' of property. The sources of the legislative power to make the two laws are thus independent of one another and the topic of the legislation authorised by the State List is not the same as the topic of the legislation authorised by the Concurrent List. The main purpose of the Improvement Act is the promotion of an improvement scheme, whereas the primary purpose of the Land Acquisition Act is the acquisition of land.

29. The complaint of discrimination leveled against section 16(2) of the Improvement Act can succeed only if it is demonstrated that its provision subject certain persons or classes of persons who are governed by its provisions along with others to hostile discrimination. If there is no such hostile discrimination and if all persons whose land could be acquired under the Improvement Act are treated alike, the complaint of discrimination becomes groundless. So, the argument that the procedure prescribed by the Land Acquisition Act with respect to the service of notices to enable opposition to the acquisition, is at variance with that prescribed by the Improvement Act has no materiality. That is so, since all persons whose lands are acquired under the Improvement Act are treated alike and similarly all persons whose lands are acquired under the Land Acquisition Act are similarly treated alike.

30. The complaint that the owner or occupier of a land has no opportunity to oppose the acquisition under the Improvement Act since that Act does not direct a notice to him, whereas that opportunity is available to him under the Land Acquisition Act, has no relevance to constitutionality.

31. In : [1964]5SCR294 the Supreme Court explained that a decision under section 6 of the Land Acquisition Act that a land was required for a public purpose was an administrative decision, and that the investigation directed by the Act has to be made only to assist such decision. In that context the Supreme Court observed:

'The decision that any particular land is needed for a public purpose is an administrative decision and it is for the purpose of arriving at that decision that the Act requires that certain enquiries be made...... It cannot in the circumstances be said that the inquiry is a judicial or a quasi-judicial inquiry.' (Page 652).

32. So it becomes clear that the statutory provisions in the two laws with respect to the service of notices are intended only to assist the decision of the question whether the land is required for an improvement scheme in the one case, and for a public purpose in the other. It is plain that the Legislature has the competence to prescribe the procedure by the adoption of which that administrative decision could be reached and it is not open to the petitioner to contend that the procedure by which it could be reached under the Land Acquisition Act should be the same as that by which it could be reached under the Land Acquisition Act.

33. It is true that while Section 16(2) directs service of notice on a person whose name is entered in the land revenue register and does not speak of any such notice to the owner or occupier, Section 4 of the land Acquisition Act directs, in addition publication in the gazette, a public notice, and, confers power upon the Deputy Commissioner to serve a notice on the owner or occupier as the case may be.

34. On the argument advanced by Mr. Ron appearing for the Board that while the publication the gazette and the public notice to which section 4 of the Land Acquisition Act refers are imperative, the service of notice on the owner or occupier is optional in support of which he depended upon the language of Section 4 which uses the word 'shall' in the one case and the word 'may' in the other, we express no opinion.

35. The decision of the Supreme Court in Surajmall Mohta and Co. v. Viswanatha Sastri, : [1954]26ITR1(SC) on which Mr. Mohandas Hegde depends does not assist the argument of unconstitutionality. That is a case in which some among the same class of persons who fell within the ambit of section 34 of the Income-tax Act were subjected to hostile discrimination and dealt with under the provisions of the impugned Act at the choice of the Commissioner though they could also be proceeded against under the provisions of S. 34 of the Income-tax Act. It is for that reason that the impugned Act was pronounced unconstitutional, and so, it is manifest that there could be no resemblance between the case and the one before us.

36. The decision of the Supreme Court in Udit Narain Singh v. Board of Revenue Bihar, : AIR1963SC786 , on which reliance was placed in support of the argument that the determination as to the existence of a public purpose is a quasi judicial decision is distinguishable since that was not a case in which that question was discussed or decided. On the contrary the enunciation on that matter was, as already observed, made in : [1964]5SCR294 and, that enunciation is destructive of the argument advanced on behalf of the petitioner.

37. We are therefore of the opinion that section 16(2) of the Improvement Act is not open to the condemnation that it is unconstitutional.

38. So we dismiss this writ petition.

39. No costs.

40. Petition dismissed.


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