Rajagopala Ayyangar, J.
1. This is an application under Article 226 of the Constitution for the issue of suitable directions in regard to proceedings taken under the Madras-Town Planning Act for the acquisition of certain land belonging to the petitioner for the purpose of forming certain roads under a scheme framed in the Tiruchirapalli Town.
2. It is necessary to state a few facts to understand the points raised. The petitioners who are three in number are owners of the lands which are specified in the affidavit in support of the petition and which are all situate in Ward No. 3 of the Tiruchirapalli Municipality. By a notification issued under Section 12 of the Madras. Town Planning Act, the Provincial Government required the Tiruchirapalli municipality to prepare, publish and submit for their sanction a draft scheme on or before 31st March, 1945. The municipality, however, did not submit the scheme within the time specified in this notification but they submitted it in the year 1950, and by an order, dated 29th July, 1950, Government sanctioned the Salai Roaa Town Extension Scheme. The notification of the sanction of Government to this scheme was published in the official Gazette under Section 14(5) of the Town Planning Act, on 21st November, 1950. Under the scheme as thus sanctioned and published certain lands belonging to the three petitioners have been specified as being required for the purpose of making a road. The legal effect of so specifiying the lands as required for the purpose of the scheme is to be found in Section 34 of the Town Planning Act which enacts:
In cases falling under Clause (b) of Section 33 a notification under Section 14 shall, notwithstanding anything contained in the Land Acquisition Act, 1894, operate in respect of any land for the purposes of the scheme as a declaration under Section 6 of the said Act, and no further declaration shall be necessary, but it shall not be incumbent on the State Government, or officer authorised in that behalf, to take immediate steps for the acquisition of such land. Provided that if the land is not acquired within three years from the date of the notification, it shall cease to have effect as a declaration under Section 6 of the Land Acquisition Act, 1894.
3. Though by the notification an extent of about 16 acres were specified as required, the Commissioner of the municipality who was the responsible authority, confined his acquisition to 11 acres out of it and this is the extent of land, the proceedings for whose acquisition is the subject-matter of controversy in this writ petition.
4. It will be seen from the terms of Section 34 which I have set out above that if the provisions of that section were to be availed of, the land would have to be acquired within three years from the date of the notification. As the date of the notification, that is, the publication in the official Gazette under Section 14(5) was on 21st Novembers 1950, the acquisition to be effective under Section 34 had to be completed before 21st November, 1953. A decision of a Bench of this Court has interpreted the expression 'acquired within three years from the date of the notification' occurring in Section 34 as meaning that the acquisition must be completed in the sense of possession being taken within the time there specified Vide Bommanna Chettiar v. The Province of Madras : AIR1945Mad442 . In order to conform to the time limited by this section, Government published a notification under Section 17(2) of the Land Acquisition Act (1 of 1894) as amended by this State Legislature and directed the responsible authority to take possession of the land with immediate effect. This notification was on 26th October, 1953 and it is stated by the respondent that possession of the various portions of the lands were taken on the 15th, 16th and 19th November, 1953 and that the acquisition was, therefore, completed within the three years specified in the last portion of Section 34.
5. The petitioners have been objecting, to the acquisition on the merits and have been contesting its legality; and the point that arises for consideration in this Writ Petition is the validity of this acquisition completed in the manner which I have set out above.
6. Several contentions have been raised by the learned Counsel for the petitioners which I shall set out; but, in view of the conclusion which I have reached on certain of these objections to the legality of this acquisition, I do not propose to deal finally with most of these.
7. The first objection was to the validity of the scheme under which the acquisition is being made. It was urged that when Government fixed a time limit within which the municipality should submit a draft scheme there was no power in the Government to extend the time so limited and that their power was exhausted when once the time originally fixed lapsed; and that, without a fresh notification under Section 12, the municipality could not submit a scheme in pursuance of the original notification.
8. Section 12 runs thus:
Notwithstanding anything contained in Sections 9 to 11, the State Government may, in respect of any municipality, after making such enquiry as they may deem necessary, by notification in the Official Gazette, require the council, before a fixed date, to prepare, publish and submit for their sanction, a draft scheme as respects any land in regard to which a town-planning scheme may be made.
In this connection learned Counsel for the petitioners relied upon the decision of the Supreme Court reported in Strawford Mfg. Co. Ltd. v. Gutta Mill Workers' Union (1953) S.C.J. 104. Prima facie it appears to me that there is not much substance in this contention. Under Section 13 of the Madras General Clauses Act:
Where an Act confers a power or imposes a duty, then the power may be exercised and the duty shall be performed from time to time as occasion requires.
9. If, under Section 13, there is a power to require a council to submit a scheme before a date and the State Government have a right to fix any date they considered proper, in my judgment they have a power to alter that date. The theory that when once a date had been fixed, their power becomes exhausted does not appeal to me as sound. The point involved in the decision by the Supreme Court is wholly different from that which arises on the construction of Section 12 and I do not consider it necessary to discuss the ratio of that decision.
10. The question, however, as to whether when the Government have varied the dates fixed by them from time to time, the date of the first notification under Section 12 or that last one in pursuance of which the municipality actually submits a scheme that ought to be taken as the relevant date for fixing the market value of the land under Section 35(2)(a) is quite a different one. A Bench of this Court has held that in case where Government have extended the time by a notification the date of the last notification fixing the date ought to be taken as the date of the publication of the notification under Section 12 within the meaning of Section 35(2)(a). As I stated before in view, however, of the conclusion that I have reached as to the validity of this acquisition, it is unnecessary to proceed further with this point, which relates merely to the basis upon which the compensation for the acquisition, if valid, ought to be assessed.
11. The next point that was urged was that the formalities which were required to be observed by the municipality before submitting the scheme as set out in the relevant rules under the Town Planning Act were not observed and that consequently the draft scheme submitted by the municipality was not valid and that this vitiated the scheme as published. I do not consider that there is any substance in this point, in the face of the terms of Section 14(6) of the Act. Sub-section (5) provides:
The sanction of the State Government to a scheme under Sub-section (3) (a draft scheme submitted by the municipality after considering the objections that might be made to it) shall be published by notification in the Official Gazette, and such notification shall state at what place and time the scheme will be open to the inspection of the public.
and Sub-section 14 (6):
A notification published under Sub-section (5) shall be conclusive evidence that the scheme has been duly made and sanctioned. The scheme shall have effect from the date of publication of such notification, and the execution of the scheme shall be commenced forthwith.
In view of the categorical declaration that the notification is to be conclusive evidence of the scheme having been duly made any pre-existing informality in the formulation of the scheme is shut out from consideration thereafter.
12. The next objection that was raised was as regards the constitutional validity of Section 33 of the Town Planning Act which relates to the acquisition of immovable property for purposes of town-planning. Section 33 as it now exists runs thus:
Immoveable property required for the purpose of a town-planning scheme shall be deemed to be land needed for a public purpose, within the meaning of the Land Acquisition Act, 1894, and may be acquired
(a) under the said Act, or
(b) under the said Act as modified in the manner hereinafter provided in this chapter.
The argument of the learned Counsel for the petitioners was that it gave to the acquiring authorities an orbitrary and unfettered discretion to proceed either under the Land Acquisition Act simpliciter or under that Act as modified by the provisions of the Madras Town Planning Act. The essential difference between the modes of acquisition indicated by the alternatives (a) and (b) are to be found in the differences as regards (a) the date as on which the market value of the property acquired is to be ascertained and (b) the solatium of 15 per cent, provided for the compulsory acquisitions under the Land Acquisition Act which is excluded under the modifications introduced by the Town Planning Act. The basis of the determination of compensation to be awarded for land acquired under the Land Acquisition Act is to be found in Section 23 the material portions of which I shall now set out:
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 at the date of the publication of the notification under Section 4(1) and
23. (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of Rs. 15 per centum on such market value in acquisition.
Section 35 of the Madras Town Planning Act provides the modifications to Sections 23. and 24 of the Land Acquisition Act in these terms:
Section 35(1). The provisions of Sections 15, 23 and 24 of the Land Acquisition Act, 1894, shall have no application in cases falling under Clause (b) of Section 33.
(2) In such cases, the Collector and the Court shall in determining the amount of compensation to be awarded for the land acquired, take into consideration - (a) the market value of the land at the date of the publication of the notification under Section 10, or Section 12 as the case may be;
and the other provisions which follow do not provide for the grant of the solatium of 15 per cent, referred to in Section 23(2) of the Land Acquisition Act. At first sight, therefore, it looks as if the responsible authority has a right to proceed under the Land Acquisition Act or the Town Planning Act in the matter of acquiting the land needed for the purpose of the scheme, though the financial results so far as the owners of the lands are concerned would be entirely different in the two cases. I therefore requested the Advocate-General to assist me with his argument as regards the validity of this section and I am obliged to him for his assistance. After hearing him I am satisfied that the section is not unconstitutional as violating the equal protection of the laws guaranteed by Article 14 of 1 trip Constitution.
13. Section 33 assumed its present, form as a resuit of an amendment effected by Madras Act IV of 1934. Originally Section 33 ran:
Immoveable property required for the purpose of town-planning scheme shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894, and may be acquired under the said Act, modified in the manner provided in this Chapter.
In the statement of objects and reasons which accompanied the Bill I of 1934 which ultimately became Act IV of 1934 the purpose of this amendment is thus set out:
Under Section 34 of the Madras Town Planning Act, 1920, lands required for the purpose of town planning scheme have to be acquired within three years from the date of the notification under Section 14 of the Act, publishing the sanction of the local Government to the scheme; and Government have no power to acquire such lands under the provisions of the Land Acquisition Act after the lapse of this period of three years. The only course open in such cases is to revoke the scheme under Section 15 of the Act and then start proceedings afresh by issuing a notification under Section 12. This procedure involves a great deal of inconvenience and delay. It is, therefore, proposed to amend the Act so as to provide for the acquisition of lands required for town planning scheme either (a) under the Land Acquisition Act, or (b) under that Act as modified in the manner provided in Sections 34 and 35. Acquisition under (b) will as now be permissible only within the period of three years prescribed by Section 34; but acquisition under (a) that is, under the Land Acquisition Act will be permissible at any time whether during or after this period of three years and the owner will be entitled to solatium of 15 per cent, prescribed by Section 23(2) of the Act.
To understand the real purport of Sub-clause (b) of Section 33 it is necessary to refer to Section 34. This enacts:
In cases falling under Clause (b) of Section 33 a notification under Section 14 shall, notwithstanding anything contained in the Land Acquisition Act, 1894, operate in respect of any land for the purposes of the scheme as a declaration under Section 6 of the said Act, and no further declaration shall be necessary, but it shall not be incumbent on the State Government, or officer authorised in that behalf to take immediate steps for the acquisition of such land. Provided that if the land is not acquired within three years from the date of the notification, it shall cease to have effect as a declaration under Section 6 of the Land Acquisition Act, 1894.
14. The scheme of the provisions is broadly this. When in pursuance of the directions of the Government under Section 12 of the Town Planning Act, a municipality draws up a scheme, the draft scheme has to contain matters specified in Section 13. Sub-clause (d) of Section 13 (1) requires the scheme to contain 'a full description of all the details of the scheme under such clauses of Section 4 as may be applicable;' and the next sub-clause, viz., (e) refers to 'an estimate of the cost of the scheme'. When one turns to Section 4 one of the matters to be provided in the scheme is:
4 (d). The acquisition by purchase, exchange or otherwise, of any land or other immoveable property within the area included in the scheme whether required immediately or not.
Under the rules framed under the Town Planning Act, Rule 38, requires the municipality when preparing a scheme to submit the following statements, one of such being a statement vide 38 (iii) in Form No. 9 showing the lands proposed to be acquired; and Form No. 9 sets out 'the description of the lands to be acquired' and 'purposes for which the acquisition is to be made'; and in the estimated cost of the scheme which the municipality is directed to prepare, it is required to set out in Form No. 11 (vide Rule 39) 'the cost of acquisition of the lands for roads and lands and for other purposes'. It is the scheme with these details that is submitted to the Government under Section 14. When the Government sanction it under Section 14 (5) and that sanction is published in the Gazette it acquires statutory force under Section 34 which I have already set out. The statement in the notified scheme that the lands are required for the purpose of making roads, etc., within the scheme operates as it were as a declaration under Section 6 of the Land Acquisition Act. The effect of these provisions is therefore to require the local authority in the first instance to determine the identity and extent of the lands which are required for the purpose of the scheme and include them in Form No. 9, appended to the draft scheme. When this is approved by the Government and is published in the official Gazette Section 34 becomes attracted to the notification with the result that it operates as a statutory declaration acquisition. It is not, therefore, as if the responsible authority has a right in every case of an option to acquire land either under Section 33(a) or under Section 33(b). In the case of lands covered by the notification under Section 14, they can proceed only under Sections 34 and 35, that is under Section 33(b). In the case, however, of lands not included in the draft scheme, which it may be necessary to acquire by reason of variations which take place after the draft scheme is sanctioned, the responsible authority is enabled to proceed under Section 33(a). As thus there is no identity in the class of owners who fall under the provisions of Sections 33(a) and 33(b) there is no discrimination between the persons falling in the same class so as to attract any argument regarding violation of Article 14.
15. There is, however, one matter to be mentioned and that is that if the responsible authority does not complete the acquisition within the period of three years of lands included in a scheme and there is need to acquire such lands the acquisition could be only under the Land Acquisition Act. But this by itself would not invalidate the provision but might give rise to a complaint of discrimination in the administration or enforcement of the Law. If, therefore, the responsible authority showed promptitude in making the acquisition within the period of three years in the case of some owners, but wantonly defaulted to avail themselves of the statutory provision within that period so as to give the benefit of the provisions, of the Land Acquisition Act and the extra compensation that could be got thereby to certain other owners, it would be a case of discrimination in the administration of the enactment for which there would be suitable remedies for the aggrieved owners. In view, however, of Section 33(a) and 33(b) operating so to speak in different fields, there is, in my opinion, no substance in the objection that Section 33(b) is void as discriminatory under Article 14. This contention, therefore, has to be rejected.
16. The next ground of objection was based on either the non-availability or the improper use of the provisions of Section 17(2) of the Land Acquisition Act. I have already adverted to the fact that the notification of the sanction of the Government under Section 14 was published in the Fort St. George Gazette on 21st November, 1950 and so the three-year period within which acquisition under Section 34 could take place would have expired on 21st November, 1953. The municipality apparently did not do much until almost the end of the period, in the matter of taking steps to complete the acquisition of the lands, now in dispute. On 26th October, 1953, Government published a notification purporting to be under Section 17(2) of the Land Acquisition Act as modified by the State Legislature. Section 17 provides for the Collector taking immediate possession of the land in cases of urgency. Section 17(2) of Act I of 1894 enacts:
Whenever owing to any sudden change in the channel or any navigable river or other unforeseen emergency it becomes necessary for any railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making journey on river side or that station or of providing convenient connection with or access to any such station, the Collector may immediately after the publication of the notice mentioned in Sub-section (1) and with the previous sanction of the appropriate Government enter upon and take possession of such land which shall thereupon vest absolutely in the Government free from all encumbrances.
The sub-section was amended by Madras Act XXI of 1948 and to the cases of urgency mentioned in the Central enaemtment the following were added:
(b) Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land-
(i) for the purpose of any library or educational institution or
(ii) for the construction, extension or improvement of
(a) Any building or other structure in any village, for the common use of the inhabitants of such village, or
(b) Any godown or any society registered or deemed to be registered under the Madras Cooperative Societies Act, 1932, or
(c) Any dwelling house for the poor, or
(d) Any irrigation tank, irrigation or drainage channel or any we 1, or
(e) any road.
After this amendment the State Government could direct the Collector to take possession of the land when there was any urgency as regards the purposes which have been set out in the amendment.
17. Two points were made by the learned Counsel for the petitioners. The first was based on the language used in Section 33 (b) which runs:
Under the said Act i.e., the Land Acquisition Act I of 1894) as modified in the manner hereinafter provided in this chapter.
The argument was that by reason of this sub-clause, there was an incorporation of the provisions of the Land Acquisition Act as it stood in 1934 into the Madras Town Planning Act, and that any later amendments effected to the Land Acquisition Act by subequent legislation would not apply automatically to proceedings under Section 33(b), of the Town Planning Act. Counsel relied on the general rule of interpretation that where an act on one topic incorporates by reference some of the provisions in another enactment, there is no automatic incorporation of the modifications of those provisions made by latter legislation in the incoporated enactment. See Maxwell on Interpretation of Statutes, 10th Edition, page 194. Hindustan Co-operative Insurance Society v. Secretary of State . He also relied on the decisoin of the Privy Council as well as that of a Division Bench of the Calcutta High Court in Corporation of Calcutta v. Omeda Khatun : AIR1956Cal122 . In view, however, of the conclusions I have reached on the argument based on the construction of Section 17(2) of the Madras Amendment I do not propose to decide finally whether this submission of the counsel as regards the effect of incorporation is correct or not. My inclination, however, is in favour of the submission of the petitioners.
18. The point that I just now referred to arises this way. The normal rule under the Land Acquisition Act and under the Transfer of Property Act is that possession could be taken only after the award of compenstion. To this an exception has been made based upon the urgency of the situation. It is this urgency which is at the basis of the grant of the spedal power conferred by Section 17(2) of the Act I of 1894, as also that which underlies the amendments effected by Madras Act XXI of 1948. In the affidavit in support of the application for the writ, the petitioners challenged the validity of the notification of Government, dated 26th October, 1953, purporting to be under Section 17(2) as amended in Madras, on the ground that it was a fraudulent exercise of the power conferred upon the Government. The answer of the respondent is to be found in paragraphs 3 and 4 of the counter-affidavit which has been sworn to by a Deputy Secretary to the Government. In this it was stated:
Paragraph 3.- The lands of the petitioners mentioned above were included in the notification, published on 21st November, 1950. Under Section 34 of the Madras Town Planning Act, the notification under Section 14 of the said Act has the effect of the declaration under Section 6 of the Land Acquisition Act and the lands specified in the nolification had to be acquired before the expiry of three years from the date of the sanction of the scheme, i.e., before 22nd November, 1953.
Paragraph 4.- The Commissioner of the Tiruchirapalli Municipality informed the Special Deputy Collector, Land Acquisition, Tiruchirapalli, in his R.C.G. 6/14857 of 1953, dated 22nd September, 1953, that the Council resolved to acquire the lands mentioned in the schedules sent by him to the formation of the scheme roads in the Salai Road Town Planning Scheme and that the time-limit for the acquisition of the lands under the Town Planning Act was short and that the lands specified in the Government, G.O. No. 2710-P.H., dated 29th July, 1950, had to be acquired before 22nd November, 1953.
He therefore requested the Special Deputy Collector to take early action on the proposals and acquire the lands in question under the Town Planning Act before the expiry of the time limit, 22nd November, 1953. In paragraph 5 the same idea is continued and after referring to the fact that the three-year period specified in Section 34 was coming to an end on 21st November, 1953, the counter-affidavit proceeds:
In view of the urgency, the Government directed under Section 17(2) of the Act that possession of the lands be taken immediately on the publication of the notice under Section 19(1) of the Act.
After the lands vested in the Government they handed over the lands 10 the third respondent (the municipality). It is, therefore, clear from this affidavit that the urgency which influenced the Government to take action under Section 17(2) was wholly the necessity to complete the acquisition before 21st November, 1953.
19. The question is whether the power in regard to Section 17(2) was validly exercised in the present case. It is not in dispute that it is for the Government to be satisfied as regards the urgency and not for the Court to investigate whether in its opinion the urgency was made out or not. In this connection it is sufficient to refer to the decision of this Court in Natesa Aasari v. State of Madras : AIR1954Mad481 , where Venkatarrama Ayyar, J., delivering the judgment of the Bench said:
What all is required under Section 17(4) is that the Government must be satisfied that there is such urgency as is contemplated by Section 17(1). If they are so satisfied they are entitled to pass an order under Section 17(4) suspending the application of Section 5(a) and that is what has been done in this case.
But this is far from authority for the proposition that the urgency that is referred to in Section 17(2) and which is the basis for the order to take immediate possession of the land before the award of the acquiring officer, might be an urgency which does not arise from the necessity to enter on the land, the necessity for having a road immediately which might not brook delay, but might arise out of the necessity to prevent the expiry of the three-year period specified at the end of Section 34 of the Town Planning Act. If a power is conferred which requires to be used only for a particular purpose the use of that power for any other purpose cannot be justified. The form and the nature of the power in the present case itself imposes a limitation based upon the purpose for which the power is to be used. If that purpose is not pursued the power is not available; and when it is made clear to the court that the power has been utilised for a purpose not contemplated by Section 17 in my judgment it is the duty of the Court to hold that the power has not been properly exercised and therefore to set aside the exercise of that power. It matters little whether the conclusions that I have reached above is rested on the theory that the exercise of the power is in bad faith (not in the sense that the authorities were actuated by improper motives but that it has been utilised for a purpose for which it was never intended) or whether it is rested on the principle of a fraud on the power as understood in the law relating to powers. In my opinion, the present case falls within that line of cases which Lord Sumner had in view when he referred in Norma v. Bombay Municipal Commissioner (1918) L.R. 45 IndAp 125 , to cases in which it has been held that
die powers conferred only for a statutory purpose cannot be validly exercised for a different purpose.... Such an exercise of the powers is outside the Act which confers them.
In this view the notification under Section 17(2) of the Act was beyond the jurisdiction of the Government; with the result that there was no completed acquisition within the period of three years fixed by Section 34 of the Madras Town Planning Act. The consequence of this is that the acquisition cannot be effected under Sections 33(b), 34 and 35 and the proceedings had to get award passed in the present case must, therefore, be set aside as beyond the jurisdiction of the relevant authorities.
20. The Writ Petition succeeds and the rule nisi is made absolute. The petitioner is entitled to his costs. Counsel's fee Rs. 100.