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Venkatamma and ors. Vs. the Special Land Acquisition Officer, City Improvement Trust Board, Mysore - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal Nos. 128 and 129 of 1968
Judge
Reported inAIR1972Kant193; AIR1972Mys193
ActsCity of Mysore Improvement Act, 1903 - Sections 14, 14(2), 14(3), 15, 16, 16(2), 17, 18, 18(1) and 23(2); Mysore Land Acquisition Act, 1894 - Sections 4, 4(2), 5, 5A, 6, 14, 15, 16, 17, 18, 23, 23(1), 23(2) and 50(2); Constituion of India - Article 31; Mysore High Court Act, 1961 - Sections 7(1); Bihar Town Planning and Improvement Trust Act, 1951; Kanpur Urban Area Development Act, 1945; City of Bangalore Improvement Act - Sections 27
AppellantVenkatamma and ors.
RespondentThe Special Land Acquisition Officer, City Improvement Trust Board, Mysore
Appellant AdvocateB. Krishna Rao and ;R.J. Babu, Advs.
Respondent AdvocateR.S. Mahendra and ;M.K. Linganna, Advs.
Excerpt:
.....under section 18. 4. the question for consideration is whether by the amendment made by the mysore land acquisition act 1 of 1927 substituting the words 'declaration relating thereto under section 6' in section 23 (1) by the words 'notification under section 4, sub-section (1)',the relevant date for purpose of determining the compensation bad been altered even in the case of lands acquired under the act. 5. the effect of a deeming provision is well settled. section 23 of the act clearly says thatthe provisions of the acquisition actshould be followed in the matter ofacquisition of lands under the act inso far as they are applicable. thewords 'so far as they are applicable'clearly indicate that it is open to thecourt not to apply any provision ofthe acquisition act to acquisitions..........section 16 of the act should be treated as equivalent to a notification under section 4 (1) of the land acquisition act and the compensation should be based on the market value as on the date of the notification under section 1c or whether the compensation should be based on the market value as on the date of the notification under section 18 of the act or whether it should be based on the market value as on some other date, are all matters to be raised and contended before the court in those references. those questions do not arise for decision at this stage in these petitions and those questions are, therefore, left open.' thereafter the references made to the court for determination of compensation payable to the owners of the acquired properties were disposed of by the civil judge......
Judgment:

E.S. Venkatakamiah, J.

1. The question of law referred to the Full Bench in all the above cases is as follows:--

'Whether the relevant date for determining the market value of the property acquired under the City of Mysore Improvement Act, 1903 (Mysore Act III of 19031 is the date of notification under Section 16 of that Act, or the date of notification issued under Section 18 of the Act, or the date of taking possession of property.'

2. The undisputed facts in all these cases are thus: That all the buildings and the lands acquired in these cases are situate in Devarai Mohalla, Mysore City, in an area of commercial importance. These buildings and lands were acquired under the provisions of the City of Mysore Improvement Act, 1903 (Mysore Act III of 1903) (hereinafter referred to as the Act) for purposes of formation of a straight road from the Statue Square to the District Offices in Mysore City, In all these cases the Notification under the Section 16 of the Act was issued in the year 1945 and the notification under Section 18 of that Act was issued in the year 1959. The possession of the lands and buildings in question were however taken from the claimants on sub sequential dates. There was therefore an interval of over fourteen years between the date of the notification under Section 16 and the date of the notification under Section 18 of the Act and an interval of nearly twenty years between the date of the notification under Section 16 of the Act and the date of taking possession of the properties. The market value of the properties rose steeply from the year 1945 onwards. Some of the persons whose properties were acquired under aforesaid notifications filed Writ petitions before this court questioning the validity, of the Notifications in Writ Petition No. 257 of 1965 and connected cases. One of the grounds raised in those writ petitions was that the acquisition of the properties nearly fifteen to twenty years after the issue of notification under Section 16 of the Act was illegal and if the notifications acquiring the property were held to be legal, then the compensation should be awarded to the claimants on the basis of the market value of the properties on the date on which the notification under Section 18 of the Act was issued. In those writ petitions, the validity of the notifications was upheld. But with regard to the question of compensation, this court observed in its order dated October 14, 1966, as follows:

'The question whether the notification under Section 16 of the Act should be treated as equivalent to a notification under Section 4 (1) of the Land Acquisition Act and the compensation should be based on the market value as on the date of the notification under Section 1C or whether the compensation should be based on the market value as on the date of the notification under Section 18 of the Act or whether it should be based on the market value as on some other date, are all matters to be raised and contended before the court in those references. Those questions do not arise for decision at this stage in these petitions and those questions are, therefore, left open.'

Thereafter the references made to the court for determination of compensation payable to the owners of the acquired properties were disposed of by the Civil Judge. Mysore, awarding compensation for the lands and buildings which formed the subject-matter of the above appeals on the basis of their market value as on the date of the notification under Section 16 of the Act. In other words, even though the notification under Section 18 was issued in 1959 and possession of the properties was taken some years thereafter, the claimants were awarded compensation for the acquired properties on the basis of their market value in the year 1945. Aggrieved by the orders passed by the learned Civil Judge, the claimants filed the above appeals before this court. When the appeals came up before a Division Bench of this court, it was contended on behalf of the claimants that the lower court had committed an error in adopting the market value of the properties as on the date of the notification under Section 16 of the Act as the basis for awarding compensation. On behalf of the Special Land Acquisition Officer, City Improvement Trust Board. Mysore, it was contended that in several cases decided by this court including M. F. A. No. 284 of 1969 (Mys) it had been held that the relevant date for purpose of awarding compensation was the date of the notification under Section 16 of the Act and therefore the basis adopted by the lower court was right. The Division Bench after hearing the parties was of the opinion that although this court had decided some cases on the basis of the market value of the properties as on the date of the notification under Section 16, in those cases the question had not been raised in the present form. The Division Bench was also of the opinion that there was no compelling reason to accept the said view. Hence, the Division Bench under Section 7 (11 of the Mysore High Court Act, 1961, referred the above question of law to a Full Bench of this court for its opinion.

3. In order to decide the question referred to the Full Bench, it is necessary to briefly refer to some of the provisions governing the cases. The Act under which the properties in question were acquired for the benefit of the City Improvement Trust Board, Mysore (hereinafter referred to as the Board), was enacted in the year 1903. The object was to make provision for improvement and future expansion of the City of Mysore as well as for the appointment of a Board of Trustees with power to carry out the aforesaid purposes. Chapter III of the said Act deals with the duties and powers of the Board of Trustees constituted for the improvement of the City of Mysore. Section 14 of the Act provides for the drawing up of a detailed scheme for the improvement or expansion or both, of the areas to which the Act applies, and the undertaking of any works and incurring of expenditure for the improvement and development of any area and for the framing and execution of such improvement schemes as may be necessary from time to time. By Sub-section (2) of Section 14, the Board is also authorised to make any new or additional schemes from time to time- Notwithstanding the aforesaid powers of the Board, the Government is also empowered under Section 14 (3) of the Act whenever it is deemed necessary to require the Board to take up any improvement scheme or works and execute the same subject to such terms and conditions as may be specified by the Government. Section 15 of the Act provides for the particulars to be provided for in an improvement scheme. Upon the completion of an improvement scheme, by Section 16 of the Act the Board is empowered to draw up a notification stating the fact of the scheme having been made and the limits of the area comprised therein and name and place where the approved scheme, a map of the area comprised therein and a statement specifying the land which it is proposed to acquire and of the land in regard to which it is proposed to recover betterment fee may be seen at all reasonable hours. It is also provided by the said section that a copy of such a notification shall be communicated to the President of the City Municipal Council, to forward within thirty days from the date of receipt thereof, to the Board any representation which the Municipal Councillors may think fit to make with regard to the scheme. A copy of the said notification is also required to be published in three consecutive weeks in the Mysore Gazette. By Sub-section (2) of Section 16 of the Act the Board is required to serve a notice on every person whose name appears in the assessment list of the Municipality or the 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 recover a betterment fee, stating that the Board proposes to acquire such building or land or to recover such betterment fee and calling upon such person to state within thirty days from the date of service of the notice whether he dissents or not to such acquisition of the building or land or for the recovery of such betterment fee and if he dissents, to state the reasons for such dissent. Upon compliance with the provisions of Section 16 and after consideration of any representation or answer received under that section, the Board is authorised to consider the scheme in the light of the representations or answers received from interested parties and to submit to the Government for sanction of the plans and estimate relating to the scheme in question under Section 17. In the event of the Government according its sanction to the scheme forwarded to it under Section 17, Section 18 provides that the Chairman of the Board shall forward a declaration for notification under the signature of a Secretary to the Government stating the fact of such sanction and that the land proposed to be acquired by the Board for the purpose of the scheme is required for a public purpose. Clause (b) of Section 18 (1) provided for the publication of the said declaration in the Mysore Gazette and clause (c) of Section 18 (1) states that the said declaration shall be conclusive evidence that the land is needed for public purpose and that the Board shall upon publication of the declaration, proceed to execute the scheme. Section 23 provides for the procedure to be followed in connection with the acquisition of the land required for a scheme. Section 23 which is the material provision in which the answer to the question referred rests reads thus

'23. The acquisition otherwise than by agreement of land within or without the City under this Act shall be regulated by the provisions, so far as they are applicable, of the Mysore Land Acquisition Act, 1894, and by the following further provisions namely;

(1) Upon the passing of a resolution by the Board that an improvement scheme under Section 14 is necessary in respect of any locality, it shall be so lawful for any person either generally or specially authorised by the Board in this behalf and for his servants and workman, to do all such acts on or in respect of land in that locality as it would be lawful for an officer duly authorised by Government to act under Section 4 (2) of the Mysore Land Acquisition Act, 1894 and for his servants and workmen, to do thereunder; and the provision contained in Section 5 of the said Act shall likewise be applicable in respect of damage caused by any of the acts first mentioned.

(2) The publication of a declaration under Section 18 shall be deemed to be the publication of a declaration under Section 6 of the Land Acquisition Act.

(3) For the purposes of Section 50 (2) of the Mysore Land Acquisition Act, the Board shall be deemed to be the local authority concerned.

(4) After the land vests in the Government under Section 16 of the Mysore Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the Acquisition, and upon the Board agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the Board and the Land shall thereupon vest in the Board.'

(underlining is by us)

It may be mentioned here that apart from Section 23, there is no other section in the Act dealing with acquisition and payment of compensation payable to the owners of the property from whom land is acquired for purposes of an improvement scheme. A reading of Section 23 would show that for purpose of computation and payment of compensation, the provisions of the Mysore Land Acquisition Act, 1894 (hereinafter referred to as the Acquisition Act) should be followed so far as they are applicable. The relevant provision of the Acquisition 'Act for the above purpose is Section 23. Section 23 of the Acquisition Act as it stood when the Act was passed in the year 1903 read as follows-:--

'23. (1) In determining the amount of compensation to be awarded for land acquired under this Act, the court shall take into consideration -- first, the market value of the land on the date of the publication of the declaration relating thereto under Section 6 ,...........'

(rest of the section is not necessary for the purpose of these cases) The above section was on the lines of Section 23 of the Indian Land Acquisition Act (Act 1 of 1894) until its amendment by Central Act 38 of 1923. Section 23 of the Acquisition Act was also similarly amended by Mysore Act 1 of 1927. By that amendment, the words 'declaration relating thereto under Section 6' in Section 23 (1) were substituted by the words 'notification under Section 4. Sub-section (1)'. Hence after the said Mysore Act I of 1927, for lands acquired under the Acquisition Act, compensation became payable on the basis of their market value as on the date of the publication of notification under Section 4 (1) of that Act. It is significant to note that the Mysore Legislature did not make any corresponding amendment in the Act. Although we find a deeming provision in Sub-section (2) of Section 23 of the Act stating that the publication of a declaration under Section 18 shall be deemed to be the publication of a declaration under Section 6 of the Acquisition Act, there is no provision stating that a notification issued under Section 16 or any other provision of the Act shall be deemed to be a notification issued under Section 4 (1) of the Acquisition Act. In our opinion, the object of stating in Section 23 (2) that the notification under Section 18 of the Act shall be deemed to be a declaration under Section 6 of the Acquisition Act. appears to be that the legislature wanted to fix the date with reference to which the market value has to be determined. We may also emphasise that that is one of the governing principles of valuation in compulsory acquisition. Since under Section 23 (1) of the Acquisition Act, as it stood in 1903. the relevant date for determining the market value of the land acquired was the date of the publication of a declaration under Section 6 of that Act, it was provided in the Act, that the date on which the notification under Section 18 was published should be treated as equivalent to a declaration under Section 6 of the Acquisition Act. If any other construction were to be placed, the deeming provision in Section 23 (2) of the Act would not serve any purpose at all. It follows, therefore, that the Legislature intended when the Act was passed that compensation should be paid for the land acquired under the Act on the basis of the market value of the lands as on the date of publication of the declaration under Section 18.

4. The question for consideration is whether by the amendment made by the Mysore Land Acquisition Act 1 of 1927 substituting the words 'declaration relating thereto under Section 6' in Section 23 (1) by the words 'notification under Section 4, Sub-section (1)', the relevant date for purpose of determining the compensation bad been altered even in the case of lands acquired under the Act.

5. The effect of a deeming provision is well settled. It may be necessary to enact a deeming provision when the thing which is deemed to be equivalent to the other is really not equivalent to the other or when there is doubt about it. A comparative study of the provisions of Sections 14 to 18 and 23 of the Act and Sections 4, 5, 5-A and 6 of the Acquisition Act would demonstrate that the said provisions are not in pari materia. There are substantial points of difference between the schemes of the two Acts. The procedure under the Act for acquiring a property for the purpose of a scheme, as already stated, is governed by Sections 14 to 18 and 23. Under Section 14 the Board has to pass a resolution providing for the drawing up of a detailed scheme or for undertaking any work. Thereafter the said scheme has to be published under Section 16 in regard to which it is open to the Municipality and owners of property to make representations. On a consideration of such representations, the Board, if it, comes to the conclusion that the Scheme should be implemented, should forward the same to the Government for its sanction. On receipt of the sanction of the Government, a declaration has to be published under Section 18. It is to be seen that there is no provision in the Act prescribing the period within which the procedure commencing with the draw-ins up of the scheme and ending with the declaration under Section 18 should be completed. It may be as it has happened in these cases there may be a delay of nearly fifteen years. Apparently for this reason, the Legislature intended that the relevant date for determining the market value of the properties acquired under the Act should be the date on which a declaration is published under Section 18. In the case of acquisitions under the Acquisition Act, the procedure is not so complicated. The proposal to acquire is notified under Section 4 (1) by the Government and not by the Board and the declaration under Section 6 is also made by the Government. In pith and substance the Act is intended to effect improvement to the City of Mysore and provide for its future expansion. The acquisition of land under it is only incidental or ancillary to the main purpose, whereas under the Acquisition Act the land is acquired by the Government for a public purpose. The two Acts cannot, therefore, be considered to be in pari materia.

6. Our view receives support from a decision of this Court in M. Laxmiah v. State of Mysore, (1966) 1 Mys LJ 308 in which it was held that the City of Bangalore Improvement Act, which is similar to the Act, and the Acquisition Act differed in several respects. While doing so this Court' relied upon two decisions of the Supreme Court, namely, Patna Improvement Trust v. Lakshmi Deyi, : AIR1963SC1077 and Nandeswar Prasad v. U. P. Government, : [1964]3SCR425 . In the first of the two decisions of the Supreme Court referred to above, the Act which came up for interpretation was the Bihar Town Planning and Improvement Trust Act (35 of 1951) and in the second it was the Kanpur Urban Area Development Act (6 of 1945). In the said Acts we find provisions similar to the provisions of the Act, providing for an alternative procedure to acquire land for the purpose of the local authorities referred to therein. It was further held by this Court in Laxmiah's case, 1966 Mys LJ 308 referred to above, that whenever the Trust Board proposed to acquire any land it did so under the provisions of the City of Bangalore Improvement Act and not under the provisions of the Acquisition Act and that reference to the Acquisition Act in Section 27 of the City of Bangalore Improvement Act did not make that acquisition an acquisition under the Acquisition Act. It, therefore, came to the conclusion that the provisions contained in Sections 4, 5-A and 6 of the Acquisition Act were inapplicable for acquisition under the City of Bangalore Improvement Act, and that their place had been taken by Sections 16 and 18 of the Improvement Act. It is because of this difference between the Act and the Acquisition Act it became necessary to enact Section 23 (2) of the Improvement Act declaring that the date of publication of the declaration under Section 18 of that Act should be deemed to be the date of publication of the declaration under Section 6 of the Acquisition Act, for purposes of computation of compensation.

7. Secondly, it is not possible to agree with the contention urged on behalf of the Special Land Acquisition Officer that the notification under Section 16 should be treated as equivalent to the notification under Section 4 (1) of the Acquisition Act, for we find that such a contention is negatived by Section 23 (1) of the Act itself. The object of issue of a notification under Section 4 (1) of the Acquisition Act is to permit any officer authorised by the Government or the Deputy Commissioner to enter upon the land proposed to be acquired and to carry out all acts provided by Section 4 (2) of the Acquisition Act to provide for compensation for any damage caused to the land by the carrying out of the acts authorised by Section 4 (2) of the Acquisition Act. Section 23 (1) of the Act states that upon the passing of a resolution by the Board that an improvement scheme under Section 14 is necessary, it would be lawful for any person authorised by the Board to enter upon the land carry out the several acts on the land in question as provided under Section 4 (2) of the Acquisition Act and the provisions of Section 5 of the Acquisition Act would likewise be applicable in respect of damage caused by any of the acts of servants or workmen of the Board. It is, therefore, to be seen that what is intended to be achieved by the publication of a notification under Section 4 (1) of the Acquisition Act is sought to be achieved under the Act by a resolution under Section 14 of that Act. The date of such resolution can only be anterior to the date of publication of notification under Section 16. Hence, we are of the opinion that it is very difficult to accept that a notification under Section 16 of the Act is equivalent to a notification under Section 4 (1) of the Acquisition Act. If the Legislature had so intended it would have amended the Act, when it amended the Acquisition Act by providing that a notification under Section 16 of the Act should be deemed to be equivalent to a notification under Section 4 (1) of the Acquisition Act. There is, therefore, no warrant for accepting the submission made on behalf of the Special Land Acquisition Officer.

8. Sri. R. S. Mahendra, the learned counsel for the Special Land Acquisition Officer, relied upon a decision of a Division Bench of this court, in M. Manicklal v. State of Mysore, (1967) 2 Mys LJ 239 and contended that Sections 4, 5-A and 6 of the Acquisition Act were similar to Sections 16 to 18 of the Improvement Act. In that case this court was of the view that all that had to be done under Sections 4, 5-A and 6 of the Acquisition Act was done equally efficaciously under Sections 16 and 18 of the Act and hence there was no need for again following the procedure prescribed under the Acquisition Act in the form of a preliminary notification under Section 4 or hearing under Section 5-A or a declaration under Section 6 of that Act. The said decision was rendered in a writ petition where the contention of the petitioner was that in addition to the procedure prescribed under the Act, the procedure prescribed under the Acquisition Act also had to be followed. The court made the observation while repelling the said contention. But nowhere in that decision this court held that for purpose of determining the compensation, the date of the notification under Section 16 of the Act should be taken as the relevant date. There was no occasion also for the court to say so.

9. It was also contended on behalf of the Special Land AcquisitionOfficer that by the amendment of Section 23 (1) of the Acquisition Act by Mysore Act 1 of 1927, the Legislatureintended that it should be effectiveeven in the case of properties acquired under the Act. It was argued thatit was necessary in the circumstancesto give effect to the provisions of Section 23 of the Acquisition Act. Wecannot accede to the said contention.Section 23 of the Act clearly says thatthe provisions of the Acquisition Actshould be followed in the matter ofacquisition of lands under the Act inso far as they are applicable. Thewords 'so far as they are applicable'clearly indicate that it is open to thecourt not to apply any provision ofthe Acquisition Act to acquisitions underthe Act if it is not possible to applythe same. We are of the opinion thatin the absence of a deeming provisionin the Act declaring that a notificationunder Section 16 shall be deemed tobe a notification under Section 4 (1) ofthe Acquisition Act it has to be heldthat the words 'notification under Section 4, Sub-section (1)' appearing inthe Acquisition Act would not be applicable to an acquisition under theAct.

10. We are of the opinion that the position of law relating to the relevant date which should be taken into account for purpose of determining the market value of the land acquired under the Act remains unaltered after it was enacted and compensation is payable to the properties acquired even after Mysore Act 1 of 1927, on the basis of the market value of the properties as on the date of the publication of a declaration under Section 18 of the Act.

11 It was lastly contended by Sri R. S. Mahendra, that the provisions of the Indian Land Acquisition Act as it is now in force in Mysore State should be applied to these cases. By Mysore Act 17 of 1961, the Mysore Legislature repealed the Acquisition Act and extended the Indian Land Acquisition Act, 1894, with some modifications to Mysore State. The provisions of the Indian Land Acquisition Act being materially similar to the provisions of the Acquisition Act, the views expressed by us in regard to the Acquisition Act hold good in the case of Indian Acquisition Act also. There is however one additional reason for saving so. Section 5-A of the Indian Land Acquisition Act has been amended by the Mysore Legislature by setting out the time limit within which the report of the Deputy Commissioner should be forwarded to the Government. But no such restriction is to be found regarding the time within which the , Board should submit a scheme for the sanction by the Government. Further the relevant provisions of the Act continue to remain unaltered even after the Mysore Act 17 of 1961, was passed. Hence, we do not find any substance in the above contention also.

12. Sri R. J. Babu, the learned counsel for one of the appellants in the above cases, however contended that the relevant date for fixing the compensation is the date on which possession of the property was taken by the Board. We find it difficult to accept this submission. The Act when it was enacted clearly declared that the relevant date was the date of the publication of a declaration under Section 18 by enacted Section 23 (2) of the Act.

13. Before concluding we propose to refer to one other aspect of the matter. If we accept the contention of the Special Land Acquisition Officer that the market value prevailing in 1945 should be taken as the basis, then the acquisition of the properties in these cases might itself become unconstitutional. It would not be just and reasonable to give compensation for a property acquired by a public authority, on the basis of its market value prevailing some fifteen or twenty years before the date of taking possession. We may refer here to a decision of the High Court of Gujarat in Doongarsee and Sons v. State of Gujarat, : AIR1971Guj46 in which it is observed that a declaration under Section 6 of the Acquisition Act in order to be valid must follow within a reasonable time after the issue of Section 4 notification. In that case Section 4 notification was issued on May 20, 1961 and Section 6 notification was issued on June 6, 1966 and thus there was an interval of about five years between the two notifications. It was held that a five years interval of time was unreasonable. In the cases before us, as already stated, the interval between the notification under Section 16 and the notification under Section 18 of the Act is nearly fifteen years.

14. Our answer to the question referred to the Full Bench, therefore, is: The relevant date for determining the market value of the property acquired under the City of Mysore Improvement Act, 1903 (Mysore Act III of 1903) is the date of notification of the declaration under Section 16 of the Act.

15. The papers will now go back to the appropriate Division Bench for disposal of the appeals in accordance, with the opinion expressed above.


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