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P.S.B. Bommanna Chettiar and anr. Vs. the Province of Madras, Represented by the Collector of Salem and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1945Mad442; (1945)2MLJ69
AppellantP.S.B. Bommanna Chettiar and anr.
RespondentThe Province of Madras, Represented by the Collector of Salem and anr.
Cases ReferredEzra v. Secretary of State
Excerpt:
.....the date of the notification and the notification will cease to have effect as a declaration under section 6 of the land acquisition act of 1894 and the acquisition will be bad. the question has been well discussed on all its aspects by the subordinate..........august, 1935, and possession was taken on the 18th december, 1936. under section 34 of the madras town planning act, if the land is not acquired within three years from the date of the notification, it (the notification) shall cease to have effect as a declaration under section 6 of the land acquisition act of 1894. it is common ground that if the land was acquired only on the date when possession was taken, more than three years had elapsed from the date of the notification and the notification will cease to have effect as a declaration under section 6 of the land acquisition act of 1894 and the acquisition will be bad. in that case the plaintiffs' suits for recovery of possession must be decreed. the trial court held agreeing with the plaintiffs' contention that an acquisition under.....
Judgment:

Somayya, J.

1. The question involved in these two appeals is the same and that is whether for the purposes of the Madras Town-Planning Act, an acquisition can be said to have been when an award was passed or only when possession was actually taken in pursuance of the award. A notification of the intended acquisition was published in the Fort St. George Gazette on the 6th September, 1932. An award was made by the Collector on the 26th August, 1935, and possession was taken on the 18th December, 1936. Under Section 34 of the Madras Town Planning Act, if the land is not acquired within three years from the date of the notification, it (the notification) shall cease to have effect as a declaration under Section 6 of the Land Acquisition Act of 1894. It is common ground that if the land was acquired only on the date when possession was taken, more than three years had elapsed from the date of the notification and the notification will cease to have effect as a declaration under Section 6 of the Land Acquisition Act of 1894 and the acquisition will be bad. In that case the plaintiffs' suits for recovery of possession must be decreed. The trial Court held agreeing with the plaintiffs' contention that an acquisition under the Act can be said to have occurred only when possession was taken under Section 16 of the Act. The suits were therefore decreed except as to damages claimed by the plaintiff. On appeal the District Judge held that the acquisition became complete when the award was passed and that having been made within three years of the 6th of September 1932, the acquisition was valid. The appeals were allowed and the suits were dismissed.

2. In this Court it is urged by Mr. Ramaswami Aiyangar, the learned advocate for the appellant, that the notification was really on the 10th August, 1932, as that is the date which the notification bears. It is not the date of the order of the Government proposing to acquire the land in question that is material, but it is the date when it is actually notified. If, for instance, the order of the Government dated 10th August, 1932, was never published, it could not be said that there was a notification under Section 6. Hence I agree with the Courts below that the relevant date is the 6th September, 1932, when the order of the Government was actually published in the Fort St. George Gazette.

3. The more important question is whether a land can be said to have been acquired until possession is actually taken. The question has been well discussed on all its aspects by the Subordinate Judge. He has referred to the various provisions of the Madras Town-Planning Act and of the Land Acquisition Act. The acquisition under the Madras Town-Planning Act is to be made substantially under the provisions of the Land Acquisition Act and therefore a reference to the provisions of the Land Acquisition Act is necessary. Chapter VII of the Madras Town-Planning Act provides for land acquisition. Section 33 says that immovable 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 that it may be acquired either under the said Act or under the said Act as modified in the manner provided in that chapter. Even in cases in which the land is acquired under the Land Acquisition Act as modified by Chapter VII of the Town-Planning Act, a notification has to be published under Section 14, Clause (5) of the Town-Planning Act. A notification under Section 14, Clause (5) takes the place of a notification under Section 6 of the Land Acquisition Act, and no further declaration is necessary. Section 34 then says that--

It shall not be incumbent on the Provincial Government, or officer authorised in that behalf, to take immediate steps for the acquisition of such land.

4. Then comes the proviso in the following words:

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.

5. We are not concerned with the notification of the provisions of the Land Acquisition Act made by the Town-Planning Act and we may therefore leave out those provisions of the Town-Planning Act from consideration. The provisions of the Land Acqsisition Act have now to be considered and the question is whether a land can be said to have been acquired under the Land Acquisition Act directly when an award is passed under Section 12 of that Act. Section 11 of the Land Acquisition Act provides for an enquiry and for determining the area, the compensation and the apportionment of the compensation. Section 12 provides that the award is to be filed in the Collector's office. Section 16 provides that possession may be taken at any time after the award. Section 17 provides for a case of urgency. Even before an award is made, possession can be taken. Section 48 says that the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken.

6. The wording of Section 16 is in my opinion very significant. It runs thus : ' When the Collector has made an award under section II, he may take possession of the land, which shall thereupon vest absolutely in the Crown free from all encumbrances.

7. Title vests absolutely in the Government on possession being taken. Similarly Section 17 provides that even before an award is passed, possession may be taken and upon the Government taking possession title vests absolutely in the Government. Both these sections indicate when title vests in the Government. If title vests in the Government only then, the acquisition cannot be said to have been made earlier. Acquisition is of title to the property; in other words it is the vesting of title. Both Sections 16 and 17 lay down that upon taking possession title vests in the Government. Section 48 puts the matter beyond all doubt. It says that the Government may withdraw from an acquisition at any time before possession is taken. That means that acquisition is not complete until possession is taken.

8. The exact nature and effect of an award under Section 12 of the Land Acquisition Act was considered by the Judicial Committee in Ezra v. Secretary of State for India (P.C.). There the Judicial Committee pointed out that the award is a mere offer of a particular sum for the property proposed to be acquired. The offer is binding on the Government, but it is not binding on the other party. The other party may, if he does not accept the amount offered, require the question to be referred to the Civil Court and that Court is to decide the amount payable. This decision shows that an award is nothing more than a binding offer. It cannot amount to ' acquisition.

9. It is argued that this view may cause great hardship. It is said that the local authority for whose benefit an acquisition is made under the Town-Planning Act should not be asked to take up a property until the price it has to pay is finally determined, that this may take more than three years from the date of the notification and that the construction compelling the authority to take up the land within three years of the notification may involve serious loss. But we are not concerned with such difficulties. The Madras Town-Planning Act has definitely laid down that the acquisition should be made within three years of the notification. Courts are not concerned with the wisdom or expediency of such a provision. As Mr. Ramaswami Aiyangar, the learned advocate for the appellant, urges, it maybe that the Legislature wanted to compel local authorities to make up their mind within a definite time either to take up the land trusting to the Courts not to compel them to pay more than a. fair price. The award gives the authority concerned a fair idea of the sum which it may have to pay. The Courts may be trusted to act fairly, and the local authority must take up the property within the time fixed. As I said before I am not concerned with the policy of the Legislature. The proviso to Section 34 is clear and unambiguous. Sections 16 and 17 lay down when title vests in the Government and Section 48 gives a clear indication to this question.

10. The appellate Judge states that there is no provision compelling the Collector to take possession or to the effect that if he fails to take possession the award would become null and infructuous or that the properties would cease to vest in the Government. Here the Judge forgets that the vesting takes place only on taking possession. So before taking possession, there is no question of ' title ceasing to vest.' Title never vested before then. The argument that there is nothing to compel the Collector to take possession is quite in conformity with the provision in Section 48 that the Government may withdraw from the acquisition at any time before taking possession and with the view laid down by the Judicial Committee. in Ezra v. Secretary of State for India that an award is nothing but an offer.

11. The decrees of the District Judge are reversed and those of the Subordinate Judge restored with costs throughout. Time for payment of costs three months. No leave.


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