TaxTMI 
TaxTMI 
1980 (4) TMI 326
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....now applies to the whole of Kerala with beneficial impact upon explosive cities like Cochin. This legislation, naturally, has made some deviation from the Kerala Land Acquisition Act, 1961, but having received insufficient attention from the draftsman on constitutional provisions, has landed the Act in litigation through a challenge in the High Court where it met with its judicial Waterloo when a Division Bench invalidated Sections 31(1) and 34(2A) which were the strategic provisions whose exit from the statute would virtually scotch the whole measure. The State of Kerala has come up in appeal, although the immediate victim is the Cochin Town Planning Trust. 2. The schematic projection of the Town Planning Act (the Act, for short) may be a good starting point for the discussion of the submissions made at the Bar. The Act, with a prophetic touch, envisions explosive urban developments leading to terrific stresses and strains, human, industrial and societal. Land is at the base of all development, and demand for the limited space available in the cities may so defile and distort planned progress as to give future shock unless scientific social engineering takes hold of the situation....
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....merits, we may recall the submissions of Shri T.L. Viswanathan, a young lawyer from Kerala, who made us feel that orality, marked by pointed brevity and suasive precision, is more telling than advocacy with counter-productive prolixity. Although the responsible scrutiny that a bench decision of the High Court deserves has been bestowed, we are unable to support the judgment under appeal or the arguments of counsel in support. 5. The controversy regarding the vires of Section 34 revolved round a few points. Before us, Article 14 has loomed large and a submission has been made that by use of the provisions for making schemes Under Section 8 or Section 10 the authority may indefinitely immobilise the owner's ability to deal with his land since Section 15 clamps restrictions, and this is unreasonable. 6. We agree that it is a hardship for the owner of the land if his ability to deal with his property is either restricted or prevented by a notification, and nothing happens, thereafter, leaving him guessing as to what the State may eventually do. Indeed, if such a state of suspense continues for unlimited periods, it may be unreasonable restriction on the right to property, althoug....
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....nt schemes is to expose one's innocence of the dynamics of urban development. Shri Raghavan fairly pointed out that, in other stages, the Act provides for limitation in time (for example, Section 33 which fixes a period of three years between the date of notification and the actual acquisition). Only in one minimal area where time-limit may not be workable, it has not been specified. The statute has left it to Government to deal expeditiously with the scheme and we see sufficient guideline in the Act not to make the gap between the draft scheme and governmental sanction too procrastinatory to be arbitrary. We need hardly say, that the court is not powerless to quash and grant relief where, arbitrary protraction or mala fide inaction of authorities injures an owner. 8. An aside : We are surprised at the obsolescent and obscurantist vocabulary surviving in the Town Planning Act because there are many feudal and incongruous expressions such as 'our Governments and references to a Land Acquisition Act which has already been repealed by the Kerala Land Acquisition Act, 1961. Modernisation is a process necessary even for the statute book and yet it has not been done, despite opp....
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....ing, in the prescribed manner, the owners of lands and buildings in the area affected, prepare and publish a draft scheme. 10. It is apparent that improvement schemes cannot hang on indefinitely and an outside limit of 2 years is given for the preparation and publication of draft schemes from the initial resolution to make or adopt the scheme is passed by the Municipal Council. Government itself may step in and direct the Municipal Council to prepare schemes and Section 10 empowers it in this behalf. Section 11 contains detailed provisions regarding the material to be included in the draft scheme. These are preparatory exercises, and then comes the sanction of the scheme by the Government Under Section 12. We indicate the elaborate character of the strategy, stages, contents and character of schemes for improvement and the opportunities for objections and suggestions to the public and the consultation with technical experts and Government, time and again, only to emphasise the complex nature of modern urban development schemes which makes it a different category altogether from the common run of 'public purposes' for which compulsory acquisition is undertaken by the State.....
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.... a facultative provision bears the lethal vice of arbitrariness in its bosom and is violative of Article 14 and is therefore, void. Section 32 of the Act is the foundation for this argument and reads thus : 32. Modification of Land Acquisition Act: Immovable property required for the purpose of town planning scheme shall be deemed to be land needed for a purpose within the meaning of the Land Acquisition Act, XI of 1089, and may be acquired under the said (Act) modified in the manner provided in this chapter. What is spun out of the words used is that for the purposes of town planning schemes an immovable property "may be acquired under the said Act (The Land Acquisition Act) modified in the manner provided in this Chapter". Of course, Chapter VII, particularly Sub-section (1) of Section 34 thereof, relates to compensation and does not provide for payment of solatium. Moreover, it is mentioned that the provisions of Sections 14, 22 and 23 (both sides agree, this should be read as Section 25) of the Land Acquisition Act shall have no application in the acquisition of property for the purpose of the Town Planning Act. 13. We do not accept the argument that there is a real optio....
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.... face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is not powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorized occupants of Govt. and Corporation property and provided a special speedy procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers' case. 14. The same reasoning applies to the present situation. The Town Planning Act is a special statute where lands have to be acquired on a large scale and as early and quickly as possible so that schemes may be implemented with promptitude. What is more, there is a specific and purposeful provision excluding some sections of the Kerala Land Acquisition Act. In such circumstances, it is incredible that the authority acting under the Act will sabotage Chapter VII, in particular Section 34, by resorting to the Kerala Land Acquisition Act in derogation of the express provision facilitating acquisition of l....
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....summer but we must warn that prodigal state action to favour some owner when Section 34 has been resuscitated will be betrayal of public interest and invalidated as mala fide even at the instance of a concerned citizen. The legislature cannot be stultified by the suspicious improvidence, or worse, of the Executive. 16. The more serious submission pressed tersely 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 of either or both. But the differential nature of the public purpose does not furnish a rational ground to pay 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 or quantum of compensation where no constitutional immunity as in Article 31 A, B or C applies? Public purpose sanctions compulsory acquisition, not discriminatory compensation, whether you take A's land for improvement scheme or irrigation s....
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....e land-owners concerned will be entitled to better compensation including 15% solatium, the potential value of the land etc. nor will there be any impediment or hurdle such as that enacted by Section 372(a) of the Adhiniyam in the way of such land owners, dissatisfied by the Collector's award, to approach the Court Under Section 18 of that Act. ...It is not necessary to dilate further on this point at this matter stands concluded by this Court's decision in Nagpur Improvement Trust's case by the ratio of which we bound. It will be sufficient to close the discussion by extracting here what Sikri C.J., speaking for the Court in Nagpur Improvement Trust's case said : Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Govt. building at 70% of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems ....
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....that under given circumstances differentiation even in the scale of compensation may comfortably comport with Article 14. No such circumstances are present here nor pressed. Indeed, the State, realising the force of this facet of discrimination offered, expilatory fashion both before the High Court and before us, to pay 15% solatium to obliterate the hostile distinction. 22. The core question now arises. What is the effect even if we read a discriminatory design in Section 34? Is plastic surgery permissible or demolition of the section inevitable? Assuming that there is an untenable discrimination in the matter of compensation does the whole of Section 34 have to be liquidated or severable portions voided? In our opinion, scuttling the section, the course the High Court has chosen, should be the last step. The Court uses its writ power with a constructive design, an affirmative slant and a sustaining bent. Even when by compulsions of inseverability, a destructive stroke becomes necessary the court minimises the injury by an intelligent containment. Law keeps alive and "operation pull down" is de mode. Viewed from this perspective, so far as we are able to see, the only discrimina....