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V. Ponnusamv and ors. Vs. Government of Tamil Nadu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtChennai High Court
Decided On
Case NumberW.P. Nos. 1485, 1501 to 1504 of 1979 and 683 of 1983
Judge
Reported inAIR1984Mad156; (1983)IIMLJ459
ActsTamil Nadu Slum Areas (Improvement and Clearance) Act, 1971; Constitution of India - Articles 14, 31C and 47; Land Acquisition Act, 1804 - Sections 23, 19 and 28
AppellantV. Ponnusamv and ors.
RespondentGovernment of Tamil Nadu and ors.
Appellant AdvocateD. Peter Francis and ;P. Chidambaram, Advs.
Respondent AdvocateAdvocate General Assisted By Govt. Pleader and ;S. Jagadeesan, Adv.
Cases ReferredRamasami Mudaliar v. State of Madras.
Excerpt:
constitution - constitutionality - tamil nadu slum areas (improvement and clearance) act, 1971, articles 14, 31 c and 47 of constitution of india and sections 23, 19 and 28 of land acquisition act, 1894 - constitutional validity of provisions for compensation under act of 1971 challenged - compensation under act of 1971 admittedly lesser than compensation under act of 1894 - it is essential to establish nexus between object of legislation and payment of lesser compensation - no logical nexus between grant of lesser compensation and land acquisition for slum eradication purposes - public purpose sanctions are compulsory sanctions and not discriminatory compensations - powers under article 31 c no ground to enact discriminatory provisions - held, provisions for compensation violative of.....mohan, j. 1. these writ petitions challenge the validity of the tamil nadu slum areas (improvement and clearance) act. 1971 (tamil nadu act i i of 1971). (throughout the course' of our judgment. it will be referred to as the act).2. since an identical point is in issue in all these writ petitions. it is enough if we refer to the facts in w. p. no. 140 of 1979 alone. the petitioner purchased a portion of the, 'rodent in r. s. no. 3969/11. tondiardet. madras from one a. sundararaian. for a sum of r3. 6.400 for the of constructing therein a residential house for his living. after raising a loan from his provident fund. the petitioner made necessary arrangements for the construction of the house. owing to some technical difficulties. the construction could not be taken our immediately. there.....
Judgment:

Mohan, J.

1. These writ petitions challenge the validity of the Tamil Nadu Slum Areas (Improvement and Clearance) Act. 1971 (Tamil Nadu Act I I of 1971). (Throughout the course' of our Judgment. it will be referred to as the Act).

2. Since an identical point is in issue in all these writ petitions. It is enough if we refer to the facts in W. P. No. 140 of 1979 alone. The Petitioner purchased a portion of the, 'rodent in R. S. No. 3969/11. TondiarDet. Madras from one A. Sundararaian. for a sum of R3. 6.400 for the of constructing therein a residential house for his living. After raising a loan from his provident fund. The Petitioner made necessary arrangements for the construction of the house. Owing to some technical difficulties. The construction could not be taken our immediately. There is an oven solace in R. S. No. 3968/2 which is described as Keri Thottarn.

3. The Tamil Nadu glum Clearance Board. Madras. wanted to acquire this proverty. known as Keerai Thottam. for the nurvose of the Slum Clearance Board. Therefore. the Government of Tamil Nadu. The first respondent. Initiated Proceedings under the Act for the acquisition of the Petitioner's -revert as well. The Petitioner was served with a notice under S. 17 (2) of the Act. He was called upon to show cause why the lands mentioned in the schedule to the notice should not be acquired. The petitioner and the owners of the adjacent volts referred their objection in the said acquisition contending that the lands were purchased for the burnoose of netting up houses and necessary loans are being raised for the burnoose of construction of houses. If the land in R. S. 3969/2 alone is acquired it would be more than enough for the arose.- the very fact that the Government have not acquired R. S. 3969/5 itself will -show that there was no need to acquire the property of the petitioner.

It was further urged. since R. S. 3969/5 being in line with other survey numbers. viz. R. S. 3969/7 to 3969/12. if it was acquired there woulA not be any need for acquiring the Proverty of the petitioner. Several representations were made to the Collector of Madras. Objecting to the acquisition front 19-41978 till clack. Representations were also made before the Chairman of the Slum Clearance Board as well as the Minister for Housing. Government of Tamil Nadu. Madras. But nothing useful came out of them. The Petitioner. was served with an order dated 20-121978 from the Soecial Denutv Collector. and Land Acquisition Officer. Madras (3rd respondent). That the request for the exclusion of the lands could not, be ' considered. as the lands are essentially required by the Tamil Nadu Slum, Clearance Board. For implementing the Slum Clearance Scheme anti therefore the petitioner was directed to hand over possession of the lands. It is at this stage. Questioning the validity of acquisition. this writ petition has been referred for a writ of certiorari or Mandamus to quash the acquisition proceedings and to forbear the residents from acquiring the lands for the , our nose of Tamil Nadu Slum Clearance Board. under the Act.

4. The leading arguments on behalf of the netitioner in W. P. 683 of 1983. as addressed by Mr. P. Chidambaram. are as follows:-

The general law relating to acquisition is the Land Acquisition Act of 1894. That avails to all acquisitions made for a public verves. From the point of view of the owner. It immaterial whether the land is acquired under the Land Acquisition Act or under this Act since the basis of acquisition under both the Acts is 'public our now. However, the provisions relating to conversation under the Act are disadvantageous and more onerous than the provisions for conversation under the Land Acquisition Act. The invigorant differences are five in number and they are-(I) Wile solarium. At the rate of 15% of the market value is movable in addition to the market value of the land for compensation under Central Act I of 1894. S. 21 (1) of the impugned State Act specifically prohibits the averment of any solarium:

(ii) Under S. 23(1) of Central Act I of 1894. A number of vital factors are required to be taken into account in determining the condensation to be awarded. There is no comparable provision in the impugned State Act and these facts are not mandatory required to be taken into account.

(iii) Under Central Act I. of 1894. A land owner not accenting the award made by the Collector may require the question to bit referred to the court. and it is the award of the court which is the original decree. On the contrary. Under the inversed State Act. It is the award of the second respondent, which is the original decree:

(iv) Under Central Act 1 of 1894. There is a first appeal to the High Court against any award of compensation and the avail Is on questions of fact and law. However. Under the inhumed State Act. The first avail is only to the Sub. Court/District Court and the second avail to the High Court are savories restricted. The second so veal is available only in cans where the compensation exceed Rum 25,000 as determined by the Prescribed Authority and it is also subject to S. 100. C.P.C.

(v) In an acquisition under Central Act 1 of 1894. be 'virtue Of S. 211. Whom the Court awards in excess of a sum awarded be the prescribed authority. the court may direct pavement of interest at 6% Per annum train the date on which mission of land was taken to the date on which the excess was Paid into court. There is no similar Provision under the imitated State Act.

5. The differential Provisions for pavement of compensation under the Land Acquisition Act and the impounded Act do not fuml3h a rational ground to Pave more conversation for acquisition under the Land Acquisition Act and the less compensation under this Act. The public purpose tinder this Act is for developing any slum cleome area or rehabilitating slum dwellers. They do not furnish a rational around for divine a less c6mvensation than what would be under the Land --Arc, question Act. Therefore. S. 20 and S. 21 of the Act are violative of Art. 14 of the Constitution.

6. Should the Court be Pleased to, hold that the said sections vil.. Ss. 20 and 21 areaunconstitutional and void. the entire Act as a whole would be unconstitutional. since it would be an Act deprivins the owners of the vroDertv without oavment of comvensatibn. From that Point of view. It will be violative of Art. 31(2) of the Constitution also.

7. In surmort of the submission that differential natvre of Public purpose does not furnish a rational around to pay less compensation. reliance is olac0 on State of Kerala v. T. M. Peter. : [1980]3SCR290 (1) of the Act. in so far as it Prohibits ipa t of so ymen. latium. has to be struck in P. G. Gos wami * v. lector of Darmna, AIR 1992 SC 121. Lastly. it is urged that in view of a similar enactment. viz.. Tamil Njidu Acouisiti4n of Land for HariJan Weltare Schemes Act. 1978 (Act 31 of 1978).

8. Provided for a sPecial Procedure for acciuirine land% for Harflan Welfare Scheinep and a lesser comDensation -was Paid. this court held in a batch of writ Petitions viz,. W, P. 797 of 1980 etc.. Anent Arnmal v. Collector of Tirunelvell. that the right of eaualltv auaranteed under Art 14 of the Constitution was infringed bv the leaislation and therefore was held to be'ultra vires as offending Arts. 14. 19 and 300-A of the Constitution'.

9. The ratio of that iudoment. accoirdirim to -the Petitioners. squarelv &mile;& More so whtn the mefit of Art. 31-C of the Constitution which was claimed in that case. is - not available in the Present case.L Mr. D. lVeter Francis. learned counsel for the netitioners In W.Ps. 1485 and 1501 to 1504 of 1979. adouts the arguments of Mr. P. Chidarnbaram,

10. The learned Advocate General. contends that the directive vrincivle embodied in the Constitution is that the State should regard the irnDrovernents of Public health as amongst its vrimarY duties. Therefore. it is not oven to the Petitioners to invoke the fund&mental; rights conferred under Arts. 14. 19(1)(9) or even Art. 300-A of the Constitution..

11. Tested from the light of tht- ObsOrvatiOns made in Kesavanands v. State of Kerala. : AIR1973SC1461 if -there is a reasonable nexus to the State nolicv. the Act should be ucheld though the binsfit, -of Art. 31-C of the Constitution cannot be had for the Present Act.A Relvina on v'araargDh 39 at Page 41 of the rulings in Excel Wear v. Union of India. : (1978)IILLJ527SC . it is urged. if the law were to give effect to the DOlicv of the State towards securitv anv of the orincioles laid down in Part IV. the - fundamental right cannot be claimed.

12. The further arminleCt of the learned Advocate General is. having restard to the scove of acouisition. which is limited to' slum clearance. under the Act. which is a Peculiar Problem to the citv of Madras. it is not oDen to the Petitioners to contend that thev should be Paid the same COMDensation as under the Land Acouisition Act. No c1pubt the apoui3ition in the instant case maiv constitute a Public Purpose. but the State cannot be comnelled to Dav under the Land Acouisition Act. There is no law which reauires that the Power of eminent domain should be exercised onlv in a particular mode. This being a special Act. it is the Provisions of the sDecial Act alone which had to be looked into for the Procedure as well as the quantum of comuensation. Any comvarison with the Lnnd Acquisition Act is odious. This court in W. P. 1132 of 1960. Ramaswami Mudaliar v. The State of Madras. has upheld the sDecial Act. even though the compensation was different in that there was no solatium. The ratio of that iudgment would squarely apply.

13-14. Since the Constitutionality of Ss. 20 and 21 of the Act I-. questioned before us. first of all we will refer to those Provisions of the Constitution. which existed at the time of Passing of this Act. Art, 31C came to be introduced by the 25th Amendment of the Constitution with effect from 20-4-1972. The Act received the assent, of the President on 2nd May 197 1. Therefore. at the outset itself we have to mention that the benefit of Art, 31-C cannot be had at all. In Passing we may also mention that Art. 31-C Protected such a legislation from attack only on the, ground of Articles 14, 19 and 31. Provided the leizisla*ion was to give effect to Arts. 39(b) and 39(c) contained in Part IV of the Constitution. Art, 39(b) and (c) state-

'The State shall, in Particular. direct its policy towards securing- (a) ..........

(b) that the ownership anti control of the material resources of the communitv are so distributed as best to subserve the common aood:-

(c) that the oPeration of the ec*onomic system does not result in the concentration of wealth and means of vroduchion

to the common detriment 11

Therefore. the validity of the Act will have to be tested in the absence of Article 31-C of the Constitution, In this connecti6n we may make an useful reference to Deei) Chand v. State of U. P.. : AIR1959SC648 . In DaraAKauh 13 the following observations were made as to the combined effect of Arts. 245. 246. 13 and before the Qonstitution Fourth Amendment Act of 19,55. It was obsirved 'thus:-

'The combined effect of the s#id Provisions may be~ stated thus: Parliament and the L islatures of States have Power to make laws in respect of any of the matters enumeratedoin the rel-

evant lists in the Seveedi -Schedule wW

that cower to make laws Is subiect to the Provisions of the Constitution Jincludina ArL 13. i.e.. the Power is mode

subiect to the limitation imDosed by Part III of the Constitution. The general power to that extent is limited. A LegisWure. therefore. has no power to make any law in deroaation of the iniunction contained in Art. 13. Art. 13(1) deals with laws in force in the territory of India before the rommencement Of the Constitution and such laws in so far as they are inconsistent with the nrovisions of Part III shall. to-the extent of such inconsistency be void. The clause. therefore. recognises the validity of the Preconstitution laws and only declares that the said laws would - be void thereafter to the extent of their inconsistency with Part 111. whereas clause (2) of the Article imposes a Prohibition on the State making laws taking away or abridaina the rights conferred by Part III anci declates that laws made in contravention of this clause shall to the extent of the contravention. be void. There is a clear distinction between the two clauses. Under clause (1) ~ vre-constitutiori law subsists except to the extent of its 'in

consistency With the Provisions of Part 111. whereas no vost-Constitution law can be made contravenina the r)rovi$ions of Part 111, and therefore. the law to that extent. though made is a nullity from its incePtion, If this clear distinction is borne i.n mind. much of the cloud raised is disvelled. When clause (2) of Art. 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridoes the rights conferred by Part 111. it will not avail the State to contend either that the clause does not embody a curtailment of the Power to legislate or that 4t imposes only a check but riot a Prohibition. A constitutional Provision against a State making certain laws cannot be whittled down by anaiOjWv or by drawing inspiration from decision'on 'the Provisions of other Constitutions: nor can we avvreciate the argument that the words 'any law' in thoe second line of Art. 13(2) Posits the survival of the law made in the teeth of such prohibition. It is said that a law can come into existence only when it is made and therefore any law made in contravention of that clause Dre-SUDvoses that the law made is not'a nullity. This argument may be su~tle but is not sound. The words 'any law in that clause can only Mean an Act Dassed Or- made factually notwithstanding the Prohibition. The result Of such contravention is stated In that clause, A Plain reading of the clause indicate& without any reasonable doubt. that the Drohibition goes to the root of the matter and limits the State's Power to make law: the law made in spite of the Prohibition is stillborn law.'

In Mahendralal Jaini v. State. of Uttar Pradesh. : AIR1963SC1019 :-

'In the case of Dost-Constitution laws. it would be hardly appropriate to distinsuish between laws which are wholly void - and for instance. those which contravene Art. 31 - and those which are substantially void but partly valid - as for instance. laws contravening Art. 19. Theoretic ally. the laws falling under the latter category may be valid qua non-citizens: but that is a wholly unrealistic consideration and it seems to us that such notionallv, partial valid existence of the said laws on the strength of hypothetical and Pedantic considerations cannot justify the application of the doctrine of eclipse to them. All postConstitution laws which contravene the mandatory in-junction contained in the first Part of Art. 13(2) are void. as void as are the laws passed without leuislative competence. and the doctrine of eclipse does not apply to them.'

In the light of these legal Principles. we Propose to consider the validity of the Act.

15. The Act is called the Tamil Nadu Slum Areas (Imrovement and Clearance) Act. 1971. This is an Act to provide for the improvement and clearance of slums in the State of Tamil Nadu. This is clear from the obJect of the Act. The preamble states as follows:-

'Whereas the number of slums in certain areas in the State of Tamil Nadu is on the 'increase and the slums are likely to become a source of danger to public health and sanitation of the said areas:And whereas under the existina law it has not been possible effectively t~ arrest the growth of slums. to eliminate congestion and to provide for certain basic needs such as streets. water supply md'drainaxe in slums and to clear slums w1dch are unfit for human habitaiion:

I And whereas to obviate this difficulty. it' is expedient to provide for the rertkoval of unhvaienic and insanitary conditions Prevailing in slums. for better accommodation and improved living conditions for slum dwellers. for the Promotion of Public health generally and for the acquisition of land for the purPose of improving or developing slum areas. redeveloping slum clearance areas and rehabilitating slum dwellers:

And whereas it. is a Directive PrinciWe of State Policy embodies in the Constitution that the State should regard the improvement of public health as among its primary ditties.'

16. The Directive Principles contained in Art. 47 of the Constitution of India (Part IV) is as follows:-'

'The State shall regard the raising of the level of nutrition and the standard of living of its People and the improvement of Public health as among its vrimary duties. and. in Particular. the State shall endeavour to bring about vrohibition of the consumption except for medicinal Purposes of intoxicating drinks and of drugs which are injurious to health.' It is this embodiment which is talked of in the abQve Preamble.

17. Now we may refer to the salient features of the Act. Under S. 3. the Power is given to the Government that on its satisfaction that a varicular area is or may be a source of danger to the health. safety or convenience of the Dublie. it may be declared to be a slum area. Even the neiahbourhood may be declared as a slum area. This can be on any one of the following grounds:-

The area beina(i) low lying: fli) insanitary: (iii) sQualid:

fiv) over crowded etc.

Chapter III of the Act seeks to Prevent the growth of the slum. while Chapter IV aims at improvement of

slum areas. Chapter V deals with slum clearance and re-develonment. Chapter VI is the heart of the Act. which 6onfers Power for acouisition of lands. In so far as the Petitioners strongly relied on the Judgment in W. P. 797 of 1980. where. according to the petitioners similar Provisions of the Tamil Nadu Act 31 of 1978 came to be struck down. wethirik at this stage it is worthwhile to set out a comparative table of the vrovisions in relation to acouisition a nd Payment of compensation.

Where the Government are satisfied that. for the Durvose of executing any work of imProvement in relation to any slum area or anv building in such area or for the DurPose of re-deyelooina any -slum clearance area. or for imroose of rehabilitating slum dwellers. it is necessary to acquire any land within. adioinina or surrounded bv any such area. they may acquire the land by Publishng in the Tamil Nadu Govt. Gazette. a notice to the effect that they have decided to aenuire the land in Pursuance of this section.

Provided that. before Publishing such notice. the Government shall call unon the owner or any other Person who. in the opinion of the Government may be interested in such land. to show cause why it should not be acquired. and after considering the cause. if any, shown by the owner or any other oersor interested in the land. the Government may Pass such orders as they deem fit.

18. Land acquired to vest in Government free from all encumbrances. When a notice under S. 17 is Dublished in the Tamil Nadu Government Gazette. the land to which the said notice relates shall. on and from the date on which the notice is so Published vest absolutely in the Government free from all encumbrances.

19. Right to receive comDensation: Everv Person having any interest in anV land acquired under this Act ,shall be entitled to receive and be Paid coninensation as hereinafter Provided.

20. ComDensation :

(1) The comnensation Payable in resDect of ffiny land acquired under this --Act shall be the market value of such, land on the date of the Dubli-stAn of the notice. referred to in S. 17.

(2) The Prescribed authority shall after holding an enquiry in the vriscribed manner determine by order

4. Power to acauire land:

(1) Whereas the District CoIllector is satisfied that for the Durvose, of an'V Harijan Welfare Scheme. it is necessarv to acquire any land he may acquire land ~11 Dublishina in the D15trict Gazet,e a notice to the effect that he has decided to amAre t.4 land. in vursuance of the said section.

(2) Before Publishing a notice under sub-sec. (1) the, District Collector or any Officer authorised by the District Collector in this behalf. shall call unon the owner in the ovinion of the District Collector or the Officer so authorised may be interested in such land to show cause why it should not be acquired.

(3) (a) The District Collector may where. he.has himself called uoon the owner or other Person to show cause under sub-see. (2~ Dass such orders as he may deem fit on the cause so shown.

(b) where any officer authorised by the District Collector had called uDon the owner or other Person to show cause under sub-sec. (2) the Officer so authorised shall make a rePort to the District Collector containing his reg6mmendations on the cause so shown for the decision of the District Collector. After considering such rePort the District Collector mav Pass such orders as he may deem fit.

5. Land acquired to vest in Goverhment free from all encumbrances. When a notice under sub-section fl) of Section 4 is iniblished in the District Gazettn the land to which the said notice relates shall on and from the date on which the notice is so Dublished vest absoluteIv in the Government free from all encumbrances.

6. Right to receive amount. Every Person having any interest in any land acquired under this Act shall be entitled to receive and be Paid an amount as hereinafter Provided.

(1) the amount of compensation under 3ub-sec. (1) and publish the said order in the Tamil Nadu Government Gazette. A copy of the said order shall be communicated to the owner of the land and every person interested therein.

(3) Where the owner of the land and the owner of the building on such land are different. the prescribed authority shall apportion the amount of compensation between the owner of the land and the owner of the building (in the -same t)rav)ortion as the market value of the building on the date of the acouisition).

21. Matters to be neglected in determining the compensation. In determining the amount of compensation under S. 20-

(1) No solatium shall be. Payable in consideration of the compulsory nature of the acquisition:

(2) The following factors shall not be taken into account. namely.

(a) the degree of urgency which has led to the acquisition:

(b) any disinclination of the Person interested to Part with the land acouired,

(cl any damage sustained by him which. if caused by a Private Person. would not render such Person liable to suit:

(d) anv damage which is likely to be caused to the land acquired after the date of the Publication of the notice under sub-sec. (1) of S. 17. bY or in consequence of the use to which it will be Put:

(e) any increase to the value of the land acquired likely to acquire from the use to which it will be put when acquired:

(fl any increase to the value of the Other land of the person interested to accrue from the use to which I^ud acquired will be put:

(A)- 4RV increase to the value of the IU4 bY reason of the use thereof

a manner which is detrimental to the health of the occupants of the land or to the Public health:

(h) any outlay or improvement on. or disposal. of the land acquired. commenced made or effected without the sanction of the Prescribed authority after the date of the vublication of the notice under sub-sec. (1) of S. 17.

7. Determination of amount:

(1) The amount payable in respect of any land acquired under this Act shall be the market value of such land on the date of publication of the notice under sub-see. (1) of S. 4. (2) In addition to the market value of the land as provided above. the vresqribed authority shall in every case award a sum of fifteen percentum on such market value as solatium in consideration of the comPulsorv nature of the acauisition.The Prescribed authority shall ' after holding an inquiry in the Prescribed manner determine by order the amount payable under sub-sec. (1). A covv of the said order shall be communicated to the owner of such land and every Person interested therein.

8. Matters to be ignored in determining the amount.

In determining the amount under S. 7. the following factors shall riot be taken into account. namelv-

(a) the degree of urgency which has led to the acquisition:

(b) any diginclination of the person interested to part with the land acQuired:

(c) any damage sustained by him which, if caused bv a Private person would not render such Dersort liable to suit:

(d) any damage which is likely to be caused to the land acquired. after the date of publication of the notice under sub-sec. (1) of Sec. 4 by or in consequence of the use to which it will be Put:

(e).anv increase to the value, of the land acquired likely to accrue from the use to which it will be put when acquired.

(f) any increase to the value of the other land of the Person interested likely to accrue from the use to which the land acquired will be put: (a) any increase to the value of the land by reason of the use thereof in a manner which is detrimental to the health of the occupants of the land or to the public health.

(h) any outlay or improvement on or disposal of. the land acquired commencement made or effected without the sanction of the Drescribed authority after the date of the Publication of the notice under subsec. (1) of S. 4.

22. Armeal against order of comvensation. Anv Derson who does not agree to the amount of comDensation. determined by the Drescribed authority under sub~section (2) of Section 20 mav Drefer an armeal to the court within such.veriod as mav be vrescribed.

23. ADportionment of comnensation:

(1) Where several nersons claim tobe interested in the amount of compensation ' determined. the prescribed authority shall determine the persons who in its opinion are entitled to receive cornuensation and the amount pavable to each of them:

(2) If anv disDute arises as to the armortionment of the comnensation or ariv Dart thereof. or as to the Dersons to whom the same or anv Dart thereof is Davable the Drescribed authority mav refer such disuute to the decision of. the court and the court shall in deciding any such disvute follow as far sks mav be. the vrovisions of Part III of the Land Acquisition Act. 1894 (Central Act 1 of 1894).

24. Pavment of comvensation:

(1) After the amount of comvensation has been determined. the Drescribed authority shall tender Davmerit of the comvensation to the Dersons entitled thereto and shall vav it to them:

(2) If the Dersons entitled to the comvensation. do not consent to receive it or if there be no nerson competent to alienate the land or if there is anv ~isvute as to the title to receive cornvensation or as to the aDDortiqnment of it. the Drescrtbed authority shall denosit the amount of comDensation in the7 court. and the court shall deal with the amount so deDosited in the manner laid down in Sections 32 and 33 of the Land Acquisition Act. *1894 (Central Act 1 of 1894).

25. Pavment of interest: When the amount of such comnensation iq 'hot vaid or derjosited on or before takina Dossession of the land. the Drescribed authority shall vav the amount with interest thereon at the rate of four Der cent Der andurn from the time of sq taking Dossession until it shall have been so Daid or devosited and such interest shall (2)

9. Ameal. against the order of amount determined-

Anv Derson who does not agree to the amount determined by the vrescribed authon'tv under sub-sec. (2) of S. 7 mav vrefer an anveal to the court within such veriod as mav be orescribed.10. Avvointment of amount determined.

(1) Where several Dersons claim to be interested in the amount determined the Drescribed authority shall determine the versons. who in its oDinion. are entitled to receive the amount Davable to each of them.

(2) If anv disnute arises as to the aDvortionment of the amount or anv Dart thereof. or as to the Dersons to whom the amount Or anv Dart thereof is navable. the vrescribed authority mav refer such disnutes to the decisions of the court and the court shall. in deciding anv such disnute follow as far as mav be. the VrOvisiOns of Part III of the Land Acquisition Act. 1894 (Central Act I of 1894).

11. Pavment of amount

(1) After the amount'has been determined. the Drescribed authority shall tender Davrnent of the amour4 to the versons entitled thereto and shall vav it to them-

(i) in a lumt) sum in a case where it dOeS not exceed two thousand ruDees: and

(ii) it, all other cases. in such number of equal instalments not exceedin't five as mav be determined bv the Drescribed authority and the amount of each such annual instal. merit shall not be less than two thousand ruDees:

Provided that. where the balance of the amount due in anv instalment is less than two thousand runees, Only t actual amount so due shall be Daid.

(2) If the Dersons entitled to the amount do not consent to receive it or if there be no Derson comvetent to alienate the land. or if there be anv disDute as to the title to receive the amount as to the amortionment of it. the vrescribed authority shall devosit the amount in the court. and the court shall deal with the said amount so devosited in the manner laid down in Ss. 32 and 33 of the be r)aid or deDosited bv the r)rescribed authority in the same manner as nrovided for the amount of comDensation.

26. ADDeal to High Court:

Subiect to the Drovisions of the Code of Civil Procedure (Central Act V of 1908) aDDlicable to armeals from original decrees. and notwithstanding anything to the contrary in any, enactment of the time being in force. a second aDt)eal shall only lie to the High Court from any decision of the court under this Act if the amount of comi)ensation as determined by the vrescribed authority exceeds ruuees twenty five thousand.

27. Power of r)rescribed authority in relation to determination of comvensation etc.-

(1) The orescribed authority may. for the vurDose of carrvine out the provisions of Ss. 20. 21. 23. 24 and 25 by order. reauire any Derson to furnish such information in his Dossession relating to any land which is acouired under this Act as may be snecified in such order.

(2) The Drescribed authority shall. while holding an enouirv under this Act. have all the- vowers of a civil Court. while trvina a suit under the Code of Civil Procedure. 1908 Central Act V of 1908 in reSDect of the following matters. namely-

(a) summoning and enforcing the attendance of any Derson and examinina him on oath-

N reauirina the discovery and nroduction of any documents:

(c) recevtion of evidence on affidavits:

(d) reouisitionina any vublic record from any court or office:

(e) issuing commission for examinati6n of witnesses.

28. Use of land acauired:

(1) Where any land has'been accuired under this Act. Lie Government mav undertake or cause to be vndertaken such measures as may be necessarv for the imvrovement. develooment. clearance or redevelooment (2)

Land Acouisition Act- 1894 (Central Act * I of 1894).

12. Pavmemnt of interest:

When the amount is not vaid or deDosited on or before taking Dossession of the land. the orescribed authority shall Day the amount with interests, thereon at the rate of six per cent ver annum from the time of so taking Dossession until it shall have been so vaid or deDosited and such interest shall be vaid or deDosited by the Drescribed authority in the same manner as vrovided for the amount. .13. Armeal to High Court:

Subiect to the vrovisions of the Code of Civil Procedure. 1908 (Central Act V of 1908) aunlicable to aDDeals from original decrees. and notwithstanding anvthina to the contrary in any enactment for the time being in force a second anveal shall lie to the High Court from any decision of the court under this Act. if the amount as determined by the t)rescribed authority exceeds such sum as may be vrescribed.14. Power Of Drescribed authoritv in relation to determination Of amount.

(1) The vrescribed authority mav. for the Durt)ose of carrvina out t

vrovisions of this Act. by order 2-e ouire any verson to furnish such Information in his vossession relatinR to any land which is acouired under this Act.

(2) The nrescribed authority shall. while holding an inauirv under this Act. have all the Dowers of a civil Court while trvina a suit under the Code of Civil Procedure. 1908 (Central Act V of 1908) in resnect of -the following matters. namelv-

(a) summoning and enforcing the attendance of anv t)erson and examinina him on oath.

(b) reouirina the discoverv and 13roduction of any document:

(c) recention of evidence on affidavits:

(d) reouisitionina anv vublic record from any court or office:

(e ) issuing commission for examination of witnesses.

15. Use of land acouired-

(1) Where anv land has been acquired under this Act. the Government may undertake or causb to be undertaken such measures as mav be of the Iand. or the erection of buildinas thereon. in accordance with such, alan. as mav be auvroved by tbwL -

(2) (1) For the 1)urDose of undertakinn the measures referred to in subam (1) the Government mav either hold the land under their own con-' troL and management and undertake such measures themselves or through the Board on 'such terms and conditions as mav be determined by them or transfer the land to the local authoritv concerned or the Board for the vurDose of undertakine Owse measitres,

OU Where the land is transferred as vrovidbe& in clause (i) such land shall vent in 'the local authority concern-. ed or the Board. as the case mav bP-- and the local authoritv or the Board &halt-;

(a) vav ta the Government the cod of - aMutsition of the land or such Vortion thereof as the Government ,May determine in each case: and

,ft undertake the measures referred to tn. sub-sec. (1) in accordance with w4ch vlans as mav be anuroved by the Government. and subiect to such directions-as mav from time to time be given by the Governmant.

Section 20 of the Att. as seen above. states.-

'Comuensation: (1) The comvensation =vable in resvect of anv land accuired under this Act shall be the market value of such land on the date of the iDublication of the notice referred to in S. 17.

(2) This mvscribed - authoritv shall. aftv holding an inauiry in the vrescribed manner. determine bv order - the amount of comDensation under sub-secSon (1). A covv of the said order shall be communicated to the owner of the land and every verson interested the'rein(3) Whexe the owner of the land and the ovrner of the buildina on such land are different. the vrescribed authority ahall avoortion the amount of comoensation between the owner of the land and the owner of the building in the same DrOvOrtion as the market value of the land bean to the market value of. the budding on the date of the ac(11'tion.'

I& A careful readina of the above tabular statement clearly estaUshes tW

(2)necessary for carrying out the Hariian'Welfare Scheme.

(2) M For the DurDose of undertaking the measures referred to in subsec. (1). the Government mav either hold the land under their own control -and management and undertake such measures themselves or through the CorDoration on such terms and conditions as mav be determined bv them. or transfer the land to the local authoritv concerned or the CorDoration for the nuxDose of undertaking these measures. (H) Where the land is transferred as vrovided in clause (i) such land shall vest in the local authority concerned or thi Corvoration, as the case mav be. and the local authoritv or the- CorDoration shall undertake the measures referred to in subsec. (1) in accordance with such Dlans as mav be avoroved by the 4overnment. and subiect to such directions as mav from time to time. be given by the Government.

identical language is used with regard to acouisition and t)avment of comvensation in both the enactments. This is a, relevant Doint to be noted to determine whether the Detitioners are entitled to contend that. since similar Drovisions under the Tamil Nadu Act 31 of 1978 came to be struck down because of the. erential treatment accorded to the owners of the lands in relation to CornDensation by not avolving the Land Ac.Quisition Act. the ratio of that iudg~ ment would conclude these cases as Well.

19- Before answerin* the above. we will now note the difference between the Act in ouestion and the Land AcQuisition Act:

1. Matters to be considered in determining cotnDensation- S. 23 of the Land Acouisition Act reouires the court to take into consideration in determining' the award of comoensation-

(i) market value as on the date of 4 (1) notification:

(ii) damage to standing cross or trees.

(iii) severance compensation

(iv) the acquisition injuriously affectina other property:

(v) the acquisition reouirina the owner to change his residence or place of business:

(vi) damage bona fide resulting from diminution of profits.

The Act in question does not ~ontain any comparable provision.

(2) Solatium: S. 23(2) of the Land Acouisition'Act provides for 15 Der cent solatium on the market value of the propertv acquired. S. 21 (1) of the imDuaned Act specifically prohibits payment of any solatiurn.

Under the Land Acquisition Act. a reference to civil Court is provided under S. 18 and that constitutes the original decree. while under the Act the award under S. 20(2) conAtitutes the original decree.

Under the Land Acquisition Act. an appeal is provided to the High Court against the award of compensation. Such an appeal could be both on question of fact as well as law. Under this Act. Section 26 provides for a second appeal to the High Court only if the compensation exceeds Rs. 25.000.

Under S. 28 of the Land Acquisition Act. where the court awards comvens~-tion in excess of the sum awarded by ~he Collector.- it may direct payment of interest of 6 Der cent Der annum. while there is no similar provision under the imDuaned Act.

20. In view of the above. therefore. the important question arises. whether the petitioners can be treated differentiallv in a disadvantageous fashion from the point of view of compensation.

21. Of course. there could be differential treatment. The sine Qua non for the exercise of power of eminent domain is 'public Durvose'. Where, therefore; for such public purnose if special enactments are made for acauirina the lands. it is very essential to establish a nexus between the obiect of the legislation and the payment of lesser compensation. The object of the Act. as has already , been nuted. is for the improvement and clearance of slums. and we have not the 31i,ghtest hesitation to hold that this is a Iverv laudable object. Millions of our !,:~-iuntrv men are below the poverty line. VIMey have no roof over, their heads. 7hev live in most unlivaienic. conditions. nl ere is an urgent need to improve the

conditions of those persons. Eradication of slums. therefore. is very essential. In this coAection we may Quote the eloquent words of Hubert Horatio HumDhrev:

'The enemy today within our gates is slumism. We must make our,declaration of war against slumism. It is a war in which all of us must enlist. And our goal can be nothina than total victory'.But what is the nexus, from the point of view of the owner who is deprived of his land? Certainly for quick eradication of slums. if an emergent procedure is adopted. one may not have Quarrel. But. whv Day different coravensation? We'are*unable to discern any ground for doing so. Sta of Kerala v. T. M. Peter. AIR 1980 V 1438, is a cas# wherein the validity of the Town Planning'Act Act 4 of 1108. M. K 'as auplicable to Kerala. came up for considerstion. It was observed in wiragraph 16 as follows:-

'The more serious submissions Dressed terselv but clearly. backed by a catena of cases. by Shri Viswanathan merits our consideration. The argument is shortly this:.As between two owners of property. the presence of public purpose empowers the State to take the. lands 6f either or both. But the differential nature of the public purpose does not furnish a rational around to Day more compensation for one owner and less for another and that impertinence vitiates the present measure. The purpose may be slum clearance. flood control or housing for workers: but how does the diversity ' of purposes warrant payment of differential scales of quantum of compensation. where no constitutional immunity as in Art. 31-A . B or C anplies? Public purpose sanctions compulsorv acquisition. not discriminatory compensation whether vo~u take A's land for improvement scheme or irrigation scheme. how can you Day more or less. guided by an irrelevance viz. the Darticular public purpose? The State must act equally when it takes property unless there is an intelligent and intelligible differentia between two categories of owners having. a nexus with the obiect. namely. the scale of compensation. It is intelletcual confusion of constitutional principle to regard classification good for one purpose as obliteration of differences for unrelated aspects. 77ds logic is neatly applied in a series of cases of this court.'Then- again 'in Vairavelu Mudaliars ew. : [1965]1SCR614 . it was held. where there was no rational relation jn the matter of attantum of,comDensation between one Dublic vurDose and another differentiation between owners was imDrouer.

22. In Om Prakash case. : [1974]2SCR731 . it was observed (at v. 1205)-

'There can be no disDute that the Government can acquire land for a Dublie Durnose including that of the Mahaualika or other local bodv. either under the um-nodifted Land Acquisition , Act 1894 or under that-Act as modified bv the Adhinivam. If it chooses the first course. then the land-owners concerned will be entitled to better comi3ensation including 15% solatium. the Dotential value of the land etc.. nor will there be any impediment or hurdle - such as that enacted by S. 372 (1) of the Adhinivam-in the way of such land owners. dissatisfied by the Collector's award., to am3roach tthx court under S. 18 of

that Act ~ It is not necessary to dilate further on this r)oint as this- matter stands concluded by this court's decision in Namur Imrovement Trusts case. AIR 1973 SC 686 by the ratio of which we am bound. It will be sufficient to close the discussion by extraction here what Sikri C. J. sDeakina for the Court in NOMur ImDro',?enient Trust's casesaid- .

Siam the. LqIM'tuge say that for a lWevital land will De afteired at 50% of the market value. for a school at 60% of the value and for a Government building at 70% of the market value? All three obiects are Vublic DUrwses and as far aq the owner U -coneerned.-it does not matter to him Qhether it is one Dublic uurDose or the other, Art. 14 confers as individual right aud in order to iustifv a classification there should be something which iustides a different treatment to this individual right. It seems to us that ordinari`* a classification basW on the mblic .946w' is not oermissiblw under ArtidR 14, for the Puroose of determining 0OWDensatiOn. The Wsition is different when the owner of the land himself is the. recivient of benefits from an imWOMMUt scheme. and the benefit to him to taken Into consideration in fixIOX ==0424tion. 10an classification be nw* an Sho ba*',of authority aC(3UUiM Vw land? In other word& dan diftUVAt =1WD143 Cf cOlnuensation be

laid it the land *is acauirect- for or bv an Imr)ro,tiement Trust or MuniciDal CorDoration or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired bv one authoritN or tNe other. It is equally immaterial whether it is one Acquisition Act or another Acquisition, Act under which theli land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another eQuallv situated the owner who is discriminated against. can claim the Drotection of Art. A.'

23. P. C. Gosw-ami v~ Collector of Darrana. : AIR1982SC1214 . is a case which arose under the Assam Land (Requisition and Acquisition) Act of 1948. The non-vavment of solatium under that Act in contradistinction to an acquisition under the Land Acquisition Act was held to be bad in the following terms (at D. 1215):-

'7. There is, however. one contention advanced bv Mr. Nandv which. in our oi)inion. deserves to be acceDted. He contends that in the matter of vavment of solatium. no discrimination can be made between acquisitions under the Assam Act and those made under the Land -Acquisition Act. S. 4 (3~ of the Assam Act itself says that if a land is acquired under that Act. thq State Government shall be emDowered to aDDIV to such land any of the Drovisions of the Land Acquisition Act 1894. In a iudgment (iudament dated ADril 1. 1980 in C.. A. 648 of 1977. revorted in : [1980]3SCR290 ) entitled State of Kerala v. T, M. Peter. given bv this court. verv recently. to'which Mr. Nandv has drawn our attention. it was held that'there is no iustification for.-discriminatinix between an acquisition urjder one-Act and an acquisition under another Act insofar as Davrnent of solatium is concerned. This should be more so in resmict 'of an acquisition to~which the State Government is emnowered to extend the Drovision of the Land AcQuisition Act. Mr. Naunit Lal has not been able to controvert this DOSitiOn in view of the iudgment to which we have referred above. W-- accordinalv, direct that the State Government shall Uav to the -&DDellant; solatium at the rate of 15 Der cent on the comDensation awarded to him -by the High Court, Excent for this modification. the decree vassed by the- High Court is confirmecL The Order of remand Dassed bv the High Court will stand.'24. All these cases fully sut)t)ort the stand of the Detitioners, that. there being no nexus between the Davment of lesser comDensation and the obiect of acquisition. there cannot be differential treatment with regard to the Davment of coravensation and the other Doints of distinction noted above. That certainly would amount to hostile discrimination.

25- We have already noted that the umbrella vrotection under Art. 31-C of the Constitution cannot be had as far as this Act is concerned. Notwithstanding the fact therefore that this legislation is in furtherance of the directive DrinCiDles embodied in Art. 47. it is bad as violative of Art. 14 of the Constitution. Therefore. we are unable to acceot the contention advanced by the learned Advocate General.

26- Lastly we inav refer to th~ iudgment of a Division Bench of this Court in W, P. i97 of 1980 batch Ananthi Ammal v. Collector of Tirunelveli. That case. as DreviousIv mentioned. dealt with the Tamil Nadu Acauisition of Land for Harijans Welfare Schemes Act. 1978. The nrotection claimed therein. was under Art. 31C of the Constitution. The Division Bench held-

'On a consideration of the decisions noticed by us and anolvine the vrinciDles laid down thereir. we find that the land of in individual will come within the amb4t of material resources of the community. The vresent legislation is for acauirina certain lands. for the, DurDose of fulfillinw the 19arikan Welfare Scheme as envisaged in & 3 (M of the Act, Such scheme avowedlv is to vrornote the economic interests of the Hariian communitv. It will not come under the category envisaged by Arl, 39 (b) or (c) sinef, no materW resources of the communitv are acouiree for distribution to subserve -the common good. nor does it aim at doln-11 away with the concentration of wealth and means of Droduction which is to the common detriment..'As rightly nut forth by Mr, G. RPmaswami, the nrith and substance of the, Dresent legislation is to acouire any land for Harlian Welfare Scheme. That r)ower to scouire without any reference to the owner of the land! Door or rich - , is not in Pith and substance a law regarding distribution, of 'material resources'. The verv definition of 'Harilan Welfare Scheme' t~ontairec; in & 3 (a) of theAct shows that the Act is intended to vrovide some welfare scheme to theHarijans, This has no reference or nexus to distribution among the community as a whole or to the exDression 'as best to serve the common good'. If the law is to acquire any land of any Derson and vrovide amenities , to a varticular section of -the community. there is no element of 'distribution' as conternDlated in Article 39(b) of the Constitution or pre vention of concentration of wealth or means of Droduction in any one individual as conternDlated in Art. 39(c).

On a consideration * ~f the relevant factors and circumstances and the decisions of the SuDrerne Court. we are of the view that even though in Sec. 2 of the Act a declaration is made that the Act is intended to give effect to the r)olicv of the State towards securing the Drincinles laid down in Part IV. and in Darticular.Art. 46 of the Constitution. in oith and substance it is to give effect to the Directive Princioles contained in Art. 46 of the Constitution, Further.. the declaration contained in the Act is deceDtive and. hence it cannot be held to be satisfying the Constitutional requirements under Art. 31-C. If so. the law will stand to lose the urotection of Art. 31-C and it will be oDen to attack under Arts. 14 and 19. The declaration given in S. 2 of the Act is general and Darticularly it refers to the directive princioles of the State Policy in Art. 46 of the Constitution of India. Although the Act is a social wetfAre legislation. the obiect of the Act cannot be squarely fixed in clause (b) or fc) of Art. 39 Art. 31-C does not give any Drotectiof to a law nassed for securing the DrinciDies laid down in Art. 46 of the Constitution. The other Dart of the declaration is general and vague and eludes from iudicial review. It cannot be said cateaorically that the Act 'was Dassed to give effect to the obiectives of clause (b) or (c) of Art. 39 of the Constitution.

In the result. the Act fails to get the constituti~-.)nal Dritection of Art, 31-C. The moment of the act fails to get the corastitutional vrotection under Art, 31-C. it is oDen to attack under Arts. 14 and iq

After reDeatina that Art. 31-A(1)(a) was also not available. the Division Bench Drocceeded to consider whether the Tamil Nadu Act 31 of 1978 was liable to be struck down. since it did not give equality before law or equal vrotection of law. It was held:-

'At the risk of repetition we may mention that from the scheme of the imDuaned Act and that of the Central Act I of 1894. and also from the procedure set out. two different procedures are envisaged for Payment of compensation which will definitely affect similarly situated person% from whom lands are acouired.'27. When Protection under Art. 46 of the Constitution was sought. that was also repelled. after distinguishing Union of India v. K. S. Subramaniam. : (1977)ILLJ5SC . wherein it was observed as follows:-

'But a discrimination made by a law in order to give effect to the Directive Principles enshrined in Art. 46 of the Constitution. cannot itself be taken as a discrimination made by constitutional Provisions as contemplated in the abovesaid decision'.28. After pointing out the differences between the Land Acauisition Act and the Tamil Nadu Act 31 of 1978 it was finally 0,onoluded thus-'Thus. t1wre is difference in the procedure. rernedies available. mode of Dayment of compensation and Principles in determining compensation between the Central Act and the impugned Act. Thus if the lands similarly situated are acouired both under the Central Act and under the impugned Act. the person whose land is acouired under the impugned Act. is Placed on a disadvantageous Position because of the procedure followed and the compensation paid is detrimental and works out to hLs disa -vantage. Thus there is unjust discrimination between owners of land similarly situated by the mere accident of some land being acouired under the impugned Act and some lands being acauired under the Central Act. Discrimination between persons whose lands ate acouired under the impugned Act and those whose lands are acauired under the Central Act is violative of Art. 14. The discrimination is writ large on the imvuaned Act and It cannot be justified on the Principle of reasonable classification as the classification is not founded on any intelliaible differentia and the difference has no nexus or rational relation to the object sought to be acWeved bv'the imDuaned legislation. The fundamental right of eaualitv before law and eaual protection of law guaranteed under Article 14 of the Constitution is thus infrinaed bv the impugned legislation'.

The ratio of this case souarelv applies to the facts of the present case.

29. It is true Srinivasan J. in W. P. 1132 of 1960 - Ramasami Mudaliar v. State of Madras. upheld the validity of the Tamil Nadu Reauisitionina and Acquisitioning Act (Act 42 of '1956). Though that Act directed payment of difierent compensation and also did not Provide for solatium. the learned Judge upheld the provisions as follows-

'Avart from the Principles oatherable from the above decisions. the broadIv phrased contention that the State cannot resort to the Madras Act. if resort to the Central Act would confer a greater benefit upon the citizen whose lands are accuired. fails to impress me. as involvina'anv violation of Art. 14. If the State Legislature was competent as it undoubted1v is. to enact Madras Act XTAI of 1956. and it cannot be denied that this Act. in so far as it deals with compulsory acouisition. lays down the Principles upon which the compensation has to be assessid and Paid. the ' validity of the measure is beyond auestion. Not only is the auantum of compensation provided by the Act not iustiflable. but it is not also the case of the petitioner that the compensation Provided is illusory. The denial of the 15% solatium in the case of other enactments has been upheld by other High Courts including ours as not offending Art. 14 of the Constitution and the vosition in the Present case is no different. It follows that the contention advanced by the learned counsel for the Petitioner cannot be accepted.,'

30- But we are of opinion that in view of the plethora of authorities of the Supreme Court. this decision cannot be said to lav down the correct law.

31. We have already held that the object of the Act is indeed a laudable one. It cannot be gainsaid that at its heart the law enforcement problem has always been and will remain a human Problem. Inhuman living conditions. lack of hygiene and sanitation prevalent in slums produces serious crime problems. The day of the silent Poor must come to an end. There Lq anger and bitterness in the contemporary slum. The slum dweller is giving, notice that he is only a tbmporarv resident. Slums in an affluent society constitute an anachronism. Many a children born, in slums is diseased at birth. sticken with hereditarv illness. but the greatest of all illness is novertY. since it is the most deadly and PrevaleAt d3ease. More often, than not lack. of Job and money is not the cause of Poverty but gie symutom, The cause lies defter in our failure to give fellow. citbms a fair habitation and decent Hvinx 3L it is in the above back-ground. we ezanilned the validitv of the DroviAans of the Chanter IV. We have Pondered on the cans before us with anxi' Pus deliberations. We entertained great resbectforthe legislation. whose Acts are in auestion. We.have no less resuect for .th& enlightened objects of the legislation. which we are called unon to review. We hM endeavoured to keen our _okm suDer an4auas vias of the - law - under the auldsom of - authottrv and Drincinies. So we find the Provisions of r VI of the -Act are clearly UnConstitutional being violative of Art. 14 of the Constitution of lndia~ At the same Iftne. we have to hold that we see no justification for holding the other Provions unconstitutional. The Act can 421ist even dehors Chanter VI. ADolving .tbs doctrine of severance. we strike down Chanter VI as unconstitutional. We have nothing to do excent to vronounce the law as we,find it and havina done this.

33. Under -similar circumstances. Justice Otorv in Dartmouth College case Sd&.-

'we have nothing to do but to nounce the law as we find it: and ......... having done this. our Justification must be left to the imperial Judgment of our country.'

34. So, we leave.

35. Rule nisi made absolute. No costs.

36. Petitions allowed.


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