# STATE OF TAMIL NADU AND ORS. ETC v. L. KRlSHANAN AND ORS. ETC

- **Citation:** [1995] Supp. 4 S.C.R. 663
- **Court:** Supreme Court of India
- **Decided:** 1995-11-01
- **Case number:** Civil Appeal Nos. 1865-66, 1868-70 of 1992
- **Bench:** K. Ramaswamy, B.P. Jeevan Reddy, B.L. Hansaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-tamil-nadu-and-ors-etc-v-l-krlshanan-and-ors-etc-13379
- **Pages:** 27

## Headnote

Land Acquisition Act, 1894:
A
B
Sections 4, 5-A, 6-Notification issued for acquiring lands for public C
pwpos~Preparation of final and effective scheme on the date of issuance
of notification-Whether a pre- conditio11-Held--7he provisions of the Act
does not require any scheme before issuance of notification-No objections
in inquiry under section 5-A were filed-Effect of
Delay in passing the award--17ie person dep1ived of the land must be D
given due compensation without avoidable delay-Obligation flows from the
duty to exercise the st~tutory power in a reasnnahle and fair manner.
Tamil Nadu Housing Board Act-Acquisition of /ands-Lands may be
acquired both as part of housing or improvement scheme framed by it under E
Chapter VII and also independent of siich schem~ublic pwpose defined
in notification-Vagueness of--Jt is a question of fact to be decided in the
facts and circumstances of each case.
The Appellants issued three notifications under section 4(1) of the
Land Acquisition Act, 1894 for acquiring the land for the implementation
F
of housing scheme and for increasing housing accommodation. The
Respondents challenged t_he said notification in writ petitions which were
allowed by the High Court holding that public purpose mentioned in the
notification is vague and the date of issuance of notifications there did not
exist any final and effective scheme prepared under the provisions of the G
Tamil Nadu Housing Board Act; that there was undue delay in passing the
award after the issuance of the declaration under section 6 and that there
was non-compliance with the Land Acquisition Rules framed by the State
Government in the course of inquiry under section 5-A.
In appeal to this Court it was contended that it was not necessary H
663
664
SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.
A
that there should be a final and effective scheme prepared under the Tamil
Nadu· Housing Board Act before the lands are an1uired for the purpose of
Housing Board and that the lands can be acquired by the Government even
where there is no final and effective housing scheme on the date of the
notification and that the respondents had neither filed objections in the
inquiry held under section 5-A nor did they raise these grounds at any time
B · before issuance of declaration under section 6.
On behalf of the Respondent it was contended that unless a scheme
is prepared under and in accordance with the Tamil nadu Housing Board
Act, no notification under section 4 of the Laud Acquisition Act can be
C issued. Unless the public purpose is spelt out clearly, the person interested
would be handicapped in making an effective representation in the inquiry
under section 5-A. Unless they know for what specific purpose the land is
sought to be acquired, giving them an opportunity to file objection is an
empty formality; further that where the land is acquired for the purpose
D of the Housing Board, a final scheme prepared under the Housing Board
Act is a condition precedent and that such a scheme is a precondition for
a notification under section 4 of the Land Acquisition Act.
E
F
Disposing of the matter, this Court
HELD : 1. Section 4 of the Land Acquisition Act, 1894 does not state
expressly or by necessary intendment that before a notification is published thereunder proposing to acquire land for the purpose of a body like
Tamil Nadu Housing Board, a duly published final scheme prepared in
accordance with the relevant Act should be in force. The provisions of the
Tamil Nadu Housing Board Act make it abundently clear that the duty of
the Housing Board is not merely the execution of the housing or improvement schemes prepared and published by it under the Act but extends to
executing other schemes made over to it or agreed to be undertaken by it.
Section 35 (2) speaks of transfer to the Board the execution of any housing
or improvement scheme not provided for by this Act, it certainly cannot
G mean a scheme prepared in accordance with the provisions of the Tamil

## Text

_Characters 0–39,900 of 66,608. This is a partial read: ask again with offset=39900 for what follows._

STATE OF TAMIL NADU AND ORS. ETC.
v.
L. KRlSHANAN AND ORS. ETC.
NOVEMBER 1, 1995
[K. RAMASWAMY, B.P. JEEVAN REDDY AND
B.L. HANSARIA, JJ.]
Land Acquisition Act, 1894:
A
B
Sections 4, 5-A, 6-Notification issued for acquiring lands for public C
pwpos~Preparation of final and effective scheme on the date of issuance
of notification-Whether a pre- conditio11-Held--7he provisions of the Act
does not require any scheme before issuance of notification-No objections
in inquiry under section 5-A were filed-Effect of
Delay in passing the award--17ie person dep1ived of the land must be D
given due compensation without avoidable delay-Obligation flows from the
duty to exercise the st~tutory power in a reasnnahle and fair manner.
Tamil Nadu Housing Board Act-Acquisition of /ands-Lands may be
acquired both as part of housing or improvement scheme framed by it under E
Chapter VII and also independent of siich schem~ublic pwpose defined
in notification-Vagueness of--Jt is a question of fact to be decided in the
facts and circumstances of each case.
The Appellants issued three notifications under section 4(1) of the
Land Acquisition Act, 1894 for acquiring the land for the implementation
F
of housing scheme and for increasing housing accommodation. The
Respondents challenged t_he said notification in writ petitions which were
allowed by the High Court holding that public purpose mentioned in the
notification is vague and the date of issuance of notifications there did not
exist any final and effective scheme prepared under the provisions of the G
Tamil Nadu Housing Board Act; that there was undue delay in passing the
award after the issuance of the declaration under section 6 and that there
was non-compliance with the Land Acquisition Rules framed by the State
Government in the course of inquiry under section 5-A.
In appeal to this Court it was contended that it was not necessary H
663
664
SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.
A
that there should be a final and effective scheme prepared under the Tamil
Nadu· Housing Board Act before the lands are an1uired for the purpose of
Housing Board and that the lands can be acquired by the Government even
where there is no final and effective housing scheme on the date of the
notification and that the respondents had neither filed objections in the
inquiry held under section 5-A nor did they raise these grounds at any time
B · before issuance of declaration under section 6.
On behalf of the Respondent it was contended that unless a scheme
is prepared under and in accordance with the Tamil nadu Housing Board
Act, no notification under section 4 of the Laud Acquisition Act can be
C issued. Unless the public purpose is spelt out clearly, the person interested
would be handicapped in making an effective representation in the inquiry
under section 5-A. Unless they know for what specific purpose the land is
sought to be acquired, giving them an opportunity to file objection is an
empty formality; further that where the land is acquired for the purpose
D of the Housing Board, a final scheme prepared under the Housing Board
Act is a condition precedent and that such a scheme is a precondition for
a notification under section 4 of the Land Acquisition Act.
E
F
Disposing of the matter, this Court
HELD : 1. Section 4 of the Land Acquisition Act, 1894 does not state
expressly or by necessary intendment that before a notification is published thereunder proposing to acquire land for the purpose of a body like
Tamil Nadu Housing Board, a duly published final scheme prepared in
accordance with the relevant Act should be in force. The provisions of the
Tamil Nadu Housing Board Act make it abundently clear that the duty of
the Housing Board is not merely the execution of the housing or improvement schemes prepared and published by it under the Act but extends to
executing other schemes made over to it or agreed to be undertaken by it.
Section 35 (2) speaks of transfer to the Board the execution of any housing
or improvement scheme not provided for by this Act, it certainly cannot
G mean a scheme prepared in accordance with the provisions of the Tamil
Nadu Housing Board Act. Moreover while transferring the scheme to the
Board, the Government is empowered to impose such conditions as they
may think fit to impose. Such terms and conditions are not specified in
the Act but lie within the discretion of the Government. Similarly sub
H section (3) of section 35 speaks of a scheme undertaken by a local authority
,
STATEv. L.KRISHANAN
665
to be made over to the Housing Board for execution, it cannot again mean
A
a housing or improvement sche111e prepared in accordance with the Housing Board Act. Section 36 indeed discloses that what is entrusted to the
Housing Board is the job of clearance or improvement of any slum area.
The (;overnment while directing the Hoard to undertake the cle~rance or
improvement of a particular area can also direct the Board to frame and
execute "SUCH housing or improven1ent scheme under this Act as the
Govcnvncnt 111ay specify" and the Board is obliged to execute such schen1e
as if such scheme is prepared by the Act [670-C, 674-D-G]
B
2. In such circumstances, it cannot be said that unless a final and
efl'ective scheme prepared in accordance with the provisions of Chapter C
VII or the Tamil Nadu Housing Board Act is in existence, the Government
cannot issue a notification under section 4 of the Land Acquisition Act for
acquiring the land required for execution or the scheme by the Housing
Board. [674-H, 675-A]
3. Merely because the Housing Board Act contemplates acquisition
of land as part of' a housing or improvement scheme, it does not follow
that no land needed for the purpose of the Housing Board can be acquired
until and unle.ss a scheme is prepared and finalised by the Board and
becomes effective under the provisions contained in Chapter VII. [680-E]
Amold Rod1icks & Anr. v. State of Maharashtra & Ors., [1966] 3 SCR
885 andAflatoon & Ors. v. Lt. Govemor of Delhi & 01'., [1975] 1 SCR 802,
relied on.
D
E
Babu Bmkya Thakur v. State of Bombay, [1961] 1 SCR 128; Pandit
F
lhandu Lal v. State of Punjab, [1961] 2 SCR 459 and State of Bombay v.
Bhanji Munji & Anr., [1955] I SCR 777, referred to.
4. The provisions of the Tamil Nadu Housing Board Act, bear out
that the acquisition of land is not dependent upon the preparation and
approval of a scheme under sections 37 to 56 and that the Government's
power of acquisition extends to other purposes of the Board and the
Housing Board Act referred to in sections 35 to 36. Moreover, under Tamil
Nadu Housing Board too, there is no inhibition against acquisition of
land for the purpose of the Board except in accordance with and as a part
G
of the scheme. [681-H, 682-A]
H
A
B
666
SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.
State of Tamil Nadu & Anr. v.A. Mohammed Yousef and Ors., (1991]
4 sec 224, distinguished
5. Where large extent of land is sought to be acquired for development or similar purposes, it would not be possible to specify how each
owner's bit would be utilised and for what purpose. Whether the public
purpose, defined in the notification is vague or not, is a question of fact
which has to be decided in each case with regard to the facts and circumstances of that case. [684-H]
A mold Rodricks & Anr. v. State of Maharashtra & Ors., (1966] 3 SCR
C 885; Lila Ram Etc. v. Union of India & Ors. Etc., [1976] 1 SCR 341 and
Af/atoon & 01:1·. v. Lt. Govemor of Delhi & On., [1975] 1 SCR 802, relied
on.
6. The Respondents not only failed to file any objections in the
in<tuiries held under section 5-A of the Land Acquisition Act, 1894, they
D also failed to act soon after the declaration was made in the year 1978.
E
They filed writ petition only sometime in the year 1982-83 when the award
were about to be passed. Laches of this nature are fatal. [685-C]
Af/atoon & 01>-. v. Lt. Govemor of Delhi & Ors., [1975] 1 SCR 802,
relied on.
7. In view of section 48-A, the provision in Section 23(1-A) and the
delay on the part of the Respondents in not reaching the Court within a
reasonable time, the delay in passing the awards after publication of the
declaration under section 6 cannot be held to be fatal. But it may not be
F
understood that land Acquisition proceedings can be delayed indefinitely
and that the provision in section 23 (1 ·A) is an adequate recompense for
such delay. No such proposition can be countenanced. These proceedings
must be concluded with due expedition. The person who is deprived of the
land must be given his due compensation without avoidable delay. This
G obligation flows from the duty to exercise the statutory power in a
reasonable and fair manner, more particularly where the subject matter
is acquisition of land or property. Ram Chand and Othe1' v. Union of India
& 01:1., [1994] 1 SCC 44, referred to. [687-E-H]
8. In the instant cases, the land acquisition proceedings were pendH ing on 30th day of April, 1982 and if so the persons interested would be
STATEv. L. KRISHANAN [B.P.JEEVAN REDDY,J.]
667
entitled to additional amount provided by sub section (l·A) of section 23 A
of the Land Acquisition Act, 1894. The declaration under section 6 was
made some time in the year 1978 and the Respondents chose to approach
the Court only in the year 1982-83. Had they raised this objection at the
proper time and if it were found to be true and acceptable, opportunity
could have been given to the Government to comply with the said requireB
men(. (688-E-F)
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1865-66,
1868-70 of 1992 Etc. Etc.
From the Judgment and Order dated 22.4.91 of the Madras High
Court in W.P. Nos. 10474/82, 2758/83, 9561/83, 9654 and 9764 of 1986.
A.K. Sen, Sivasubaramaniam, R.K. Jain, R. Sundarvardan, Harish N.
Salve, A. Raghuvir, M.N. Krishnamani, K. Subaramanyam, Gopalaratanam,
Y. Balaji, V. Krishnamurthy A.T.M. Sampath, Sudarsh Menon and
Praveen Kumar Singh Advs. for the Appearing parties.
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J. Civil Appeal Nos. 1865-66, 1868-70 of 1992.
c
D
These appeals are preferred by the State of Tamil Nadu, Tamil Nadu E
Housing Board and others against the judgment of the Madras High Court
allowing a batch of writ petitions and quashing three notifications issued
under Section 4(1) of the Land Acquisition Act, 1894. The three notifica·
lions concerned herein are the notifications dated May 8, 1975, August 29,
1975 and February 19, 1975. The writ petitions have been allowed relying
mainly upon the earlier decision of that Court in State of Tamil Nadlt v. A.
F
Mohammed Yollsef and Ors., (1992) 2 M.L.J. 149 which has since been
affirmed by this Court in State of Tamil Nadlt & Anr. v. A. Mohammed
Yousef & Ors., (1991] 4 SCC 224 and the decision of this Court in Munshi
Singh v. Union of India, (1973] 1 SCR 973.
The first and the main ground assigned by the High Court for G
quashing the said notifications is that the public purpose stated therein is
vague and that on the date of issuance of the said notifications, there was
not existing any final and effective scheme prepared under the provisions
of the Tamil Nadu State Housing Board Act. Two other grounds assigned
by the High Court in support of its decision are (i) tha"t there was an undue H
A
B
c
D
E
F
G
H
668
SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.
delay in passing the awards after the issuance of the declarations under
Section 6 and (ii) non-compliance with clauses (b) and (c) of Rule 3 of the
Land Acquisition Rules framed by the Stale Government in the course of
enquiry under Section 5-A.
The public purpose stated in the three notifications is "for the
implementation of housing schemes lo tncct the demands n1ade by various
sectors of the population under 'Kalaignar Karunanidhi Nagar Further
Extension Schen1e"', Ttfor the creation of a new neighbourhood known as
Kalaignar Karunanidhi Nagar Part II Scheme" and "for increasing housing
accommodation for the development of South Madras neighbourhood"
respectively. Enquiries under Section 5-A were held and on the basis of
reports submitted in that behalf, declarations under section 6 were made
sometime in the year 1978. Awards were passed in the year 1983. The writ
petitions from which these appeals arise were filed in the year 1982 and in
1983 - one of them even later.
Sri Harish Salve, learned counsel for the appellants, disputed the
correctness of the judgment under appeal on the following grounds : the
impugned judgment of the High Court is contrary to more than one
Constitution Bench judgment of this Court. The principle of the decision
in Mohammed Yousef or, for that matter, of Mu11shi Si11gh has no application to the facts herein; it is not necessary that there should be a final and
effective scheme prepared under the Tamil Nadu State Housing Board Act
(Housing Board Act] before lands are acquired for the purpose of the
Housing Board; lands can be acquired by the Government even where
there is no final and effective housing scheme on the date of the notification; in these cases, the schen1cs were indeed initiated prior to the issuance
of Section 4 notifications and were finalised after the issuance of the said
notifications. The public purpose stated in the notifications is not vague.
Learned counsel further submitted that the respondents-writ petitioners
cannot be allowed to raise the said grounds inasmuch as they neither filed
objections in the enquiry held under Section 5-A, nor did they raise these
grounds at any time before the is~uance of declaration under section 6.
They did not make this grievance even after the issuance of section 6
declaration for a number of years. Only when the awards were about to be
passed (and in some cases after the passing of the awards) were these writ
petitions filed. On the ground of !aches and acquiscence alone, the writ
petitions ought to have been dismissed. So far as the post-declaration delay
STATE v. L. KRISHANAN [B.P. JEEV AN REDDY.].]
669
assigned by the High Court as one of the grounds for its decision is A
concerned, the learned counsel submitted that the said delay, if any, is not
fatal in vie\v of the counterMvai1ing/beneficial provision contained in Section
48-A, added by the Madras Legislature in the Land Acquisition Act.
Laches are pleaded with respect to this ground as well. With respect to the
other ground given by the High Court, viz., non-compliance with clauses B
(b) and ( c) of Rule 3 of the Tamil Nadu Land Acquisition Rules, Sri Salve
submitted that the High Court ought not to have permitted the writ
petitioners to raise this ground since they did not even file objections in
the enquiry under Section 5-A nor did they complain of this aspect at the
proper time. Only when the awards were about to be passed or after the
passing of the awards, as the case may be, the petitioners have come
forward with the present writ petitions.
c
Sri Ashok Sen, learned counsel for the respondents writ petitioners,
supported the reasoning and conclusions arrived at by the High Court. He
submitted that unless a scheme is prepared under and in accordance with D
the Housing Board Act, no notification under Section 4 of the Land
Acquisition Act can be issued. Unless the public purpose is spelt out
clearly, the persons interested would be handicapped in making an effective representation in the enquiry under Section 5-A. Unless they know for
what particular purpose their land is sought to be acquired, giving them an
opportunity to file objections is an empty formality. A final and effective
housing scheme prepared and published under the Housing Board Act,
containing as it does the full particulars of development, alone would satisfy
the requirement of particularisation of the public purpose. Where, therefore, the land is acquired for the purpose of the Housing Board, a final
scheme prepared under the Housing Board Act is a condition precedent.
It is for this reason that this Court has held in Mohammed Yousef that such
a scheme is a precondition for a notification under Section 4 of the Land
Acquisition Act.
Sri Siva Subramaniam, learned counsel for some of the respondentswrit petitioners, supported the contentions of Sri Sen. He submitted further
that even apart from the provisions of the Housing Board Act, there ought
to be a scheme before the issuance of Section 4 notification not only to
satisfy the requirement of public purpose but also to afford the persons
E
F
G
interested a reasonable and effective opportunity lo object.
H
A
B
670
SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.
The first question that arises in these appeals is whether a final and
effective scheme prepared and published under the provisions of the
Housing Board Act is a pre-condition to the issuance of notification under
Section 4. This question has to be answered with reference to the
provisions of the Land Acquisition Act as well as the Housing Board Act.
None of the three notifications, it may be noted, state that the land
is being acquired for the purpose of the Tamil Nadu Housing Board. The
fact, however, remains - and it is admitted before us - that the said lands
were being acquired for the purpose of the Housing Board only.
C
Section 4 of the Land Acquisition Act does not state expressly or by
necessary intendment that before a notification is issued/published thereunder proposing to acquire land for the purpose of a body like the Tamil
Nadu Housing Board, a duly published final scheme prepared in accordance with the relevant Act should be in force. The respondents-writ
petitioners, however, seek to deduce such a requirement from the·
D provisions of the Tamil Nadu Housing Board Act.
E
F
The Housing Board Act was enacted by the Tamil Nadu legislature
"to provide for the execution of housing and improvement scheme, for the
establishment of a State Housing Board and for certain other matters".
Section 2 defines certain expressions occurring in the Act. The expression
"housing or improvement ~cheme" is defined in clause (9) to mean a
scheme framed under the Act and includes any one of the types of schemes
referred to in section 40. Chapter-II (Sections 3 to 11) provides for the
constitution of the Board, appointment of its members and their disqualifications. Chapter-III (Sections 12 to 15) provides for transfer of the
assets and liabilities of the City Improvement Trust to the Housing Board.
Section 12 dissolves the City Improvement Trust with effect from the date
of the said enactment and vests all assets and liabilities thereof in the
Board. Chapter-VI (Sections 16 to 22) deals with officers and members of
the staff of the Board. Chapter-V (Sections 23 to 27) deals with the conduct
G of business of the Board and its committees while chapter-VI (Sections 28
to 34) deals with powers of the Board and Chairman to incur expenditure
on scheme and enter into contracts. Chapter-VII (Sections 35 to 69-A),
which provides for housing or improvement schemes, is relevant for our
purposes.
H
Sub-section (1) of Section 35 provides that "subject to the provisions
STATE v. L. KRISHANAN [B.P. JEEV AN REDDY, J.]
671
of this Act, the Board may, from time to time, incur expenditure and A
undertake works for the framing and execution of such housing or improvement schemes as it may consider necessary." Sub-section (2) is significant
for our purposes. It says,
11The Government ·may, on such terms and
conditions as they may think fit to impose, transfer to the Board the
execution of any housing or improvement scheme not provided for by this B
Act, and the Board shall thereupon undertake the execution of such
scheme as if it had been provided for by this Act." Sub-section (3) empowers the Board to take over for execution any housing or improvement
scheme undertaken by a local authority on such terms and conditions as
may be agree upon. The Board shall execute such scheme as if it is
provided by the Housing Board Act. Section 36 empowers the Government C
to transfer to the Housing Board "any land in such area belonging to or
vested in them or acquired under the provisions of the Tamil Nadu Slum
Improvement (Acquisition of Land) Act, 1954'', on such terms as they may
think fit to impose, for the purpose cif clearance or improvement of any
slum area. The Government is also empowered to direct the Board to D
undertake the clearance or improvement of that area and to frame and
execute such housing or improvement scheme under the Act as the
Government may specify. Thereupon, the Board is obligated to undertake
the said scheme for execution as if it had been provided for by the Housing
Board Act. We shall refer to the significance of these provisions after we
refer to some more provisions in this Chapter.
E
Section 37 says that "a housing or improvement scheme may be
framed by the Board on its own motion or at the instance of the Government or a local authority''. Section 38 empowers the Board either to execute
or refuse to execute any scheme sought to be entrusted to it by any local
F
authority. Section 39 specifies the matters which must be provided for in a
housing or improvement scheme. In short, all the particulars of the
proposed scheme have to be stated therein. Section 40 specifies the several
types of housing or improvement schemes. There are as many as eight
types. Sections 41 to 48 deal separately with each type of scheme. We need G
not refer to the contents of these sections for the purpose of these appeals.
Sections 49 to 56 deal with the procedure to be followed by the Board in
preparing a housing or improvement scheme. Section 49(1) says that where
any housing or improvement scheme has been framed, the Board shall
prepare a notice to that effect and specify (a) the boundaries of the area
comprising the scheme and (b) the place or places at which particulars of H
672
SUPREME COURT REPORTS [1995J SUPP. 4 S.C.R.
A
the scheme, a map of the area and details of the land which it is proposed
to acquire may be seen at reasonable hours. Sub-section (2) provides that
the notice contemplated by sub-section (1) shall be published in the official
gazette and two leading daily newspapers. A copy of the notice has also to
be sent to the local authority concerned. Sub-section (3) empowers the
B Chairman to deliver copies of all documents referred to in the notice to
any applicant on payment of the appropriate fee. Section 50 says that the
local authority to whom the notice under Section 49(2)(b) is sent shall
forward any representation received by it to the Board within sixty days of
the said notice. Section 51 deals with the notice regarding proposal to
c
recover betterment fee, which need not be noticed by us. Section 52
requires a local authority to furnish, on a request being made by the·
Chairman of the Board, a copy of or an extract from, the assessment list
of the local authority. Section 53 provides that after considering the objections and representations, if any, received pursuant to the notice published
under Sections 49(2), 50 and 51( 4) and after hearing such objectors, as may
D desire to be heard, "the Board may either abandon or modify or sanction
the scheme, or apply to the Govermuent for sanction with such modifications, if any, as the Board may consider necessary if the cost of the scheme
exceeds ten lakhs of rupees". Sub-section (2) then says that the Government
may sanction the scheme so forwarded either with or without modifications
E
F
or may refuse to sanction or may return the same to the Board for
reconsideration. Sub-section (3) of Section 53 says that where any
modifications are effected to the scheme , it has to be re-published in
accordance with Section 49. Section 54(1) provides for publication of
sanctioned housing or improvement schemes. Sub-section (2) says that the
publication of the notification or notice under sub-section (l) respect of
any scheme shall be conclusive evidence that the scheme has been duly
framed and sanctioned. Sub-section (3) provides for an appeal against such
scheme to the Government by any person aggrieved therewith to be
preferred within thirty days of such publication. Sub-section ( 4) says that
the scheme notified under Section 54(1) shall come into force and shall
G have effect (a) where no appeal is preferred under sub-section (3) on and
from the expiry of the thirty <lays referred to in that sub-section and (b)
where such appeal is preferred on and from the date of the decision of the
Government on such appeal. Section 55 says that as soon as may be after
a housing or in1provement scheme has come into force as provided in
H Section 54, the Board shall proceed to execute the same. Section 56
STATE v. L. KRISHANAN [B.P. JEEV AN REDDY, J.J
673
provides for alteration or cancellation of any scheme, even after it has come
into force as provided in Section 54 but before it has been carried into
execution. Clause (b) of Section 56 (which has been omitted by the Amendment Act 5 of 1992) provided that if any alteration in the scheme to be
effected under Section 56 involves acquisition of any land, the procedure
prescribed in the aforesaid sections in this Chart.er shall be followed as if
the alteration were a separate scheme. Section 57 provides for transfer of
any building, land or street situated within the limits of a local authority
and vesting in it to the Board for execution of the scheme. Section 58
provides for a similar transfer of a private street or square and the
procedure to be followed in that behalf. The remaining sections in this
Chapter deal with the powers of the Board in the matter of executing the
scheme prepared under Chapter.
Chapter-VIII provides for acquisition and disposal of lands required
by the Board. Section 70 (which has since been substituted by Amendment
A
B
c
Act 5 of 1992) read as follows before its substitution; "70. Any land or any D
interest therein required by the Board for any of the purposes of this Act
may be acquired under the provisions of the Land Acquisition Act, 1894
(Central Act 1 of 1894)." It is not necessary to refer to the remaining
provisions of the Act.
Coming back to the provisions of Chapter-VII, it may be noticed that
the said chapter provides for the types of the housing or improvement
schemes and the procedure following which housing or improvement
scheme have to be finalised and executed. But Sections 35 and 36 make it
clear that the duty of the Housing Boring does not begin and end with
executing the housing or in1provcmcnt scheme prepared by it under the
Act. The Housing Board is under an obligation to carry out certain other
schemes also as are provided in these sections. Sub-section (2) of Section
35 states that the Government may, on such te1111s and conditions as they
may t/1i11k fit to impose, transfer lo the Board the execution of any housing
E
F
or improvement scheme not provided for by the Act. On such transfer, the
Board is under an obligation to undertake the execution of such scheme G
as if such scheme has been provided for by the Housing Board Act. Subsection (3) of Section 35 similarly provides that the Board may also
undertake to execute any housing or improvement scheme undertaken by
a local authority on terms and conditions to be agreed upon between it and
such local authority. If the Board agrees to execute the said scheme of the H
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SUPREME COURT REPORTS [1995J SUPP. 4 S.C.R.
A local authority, it shall execute that scheme as if it had been provided for
by the Housing Board Act. Section 36 then provides that if the Government
thinks it expedient or necessary for the purpose of clearance or improvement of any slum, it can transfer any land in such area belonging to it or
vested in it or acquired under the provisions of the Tamil Nadu Slum
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Improvement (Acquisition of Land) Act, 1954 to the Board on such terms
and conditions as the Government may think fit to impose and direct the
Board to undertakes the clearance or improvement of that area and to
frame execute such housing or improvement scheme under this Act as the
Government may specify. Section 36 further says that on such transfer and
direction by the Government, the Board shall execute the said scheme as
if it had been provided for by this Act.
These provisions make it abundantly clear that the duty of the
Housing Board is not merely the execution of the housing or improvement
schemes prepared and published by it under the Act but extends to
D executing other scheme as well as are made over to it or agreed to be
undertaken by it. Now, when Section 35(2) speaks of transfer to the Board
the execution of any housing or improvement scheme not provided for by
this Act, it certainly cannot mean a scheme prepared in accordance with
the provisions of the Housing Board Act. Moreover, while transferring the
scheme to the Board, the Government is empowered to impose such
E conditions as they may think fit to impose. Such terms and conditions are
not specified in the Act but lie within the discretion of the Government.
Similarly, when sub-section (3) of Section 35 speaks of a scheme undertaken by a local authority to be made over to the Housing Board for
execution, it cannot again mean a housing or improvement scheme
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prepared in accordance with the Housing Board Act. Here again, the
taking over the scheme by the Housing Board is subject to such terms and
conditions as may be agreed upon by both. Section 36 indeed discloses that
what is entrusted to the Housing Board is the job of clearance or improvement of any slum area. The Government while directing the Board to
undertake the clearance or improvement of a particular area can also
G direct the Board to frame and execute "such housing or improvement
scheme under this Act as the Govemment may specify" and the Board is
obliged to execute such scheme as if such scheme is prepared by the Act.
In such circumstances, it would not be right to contend that unless a
H final and effective scheme prepared in accordance with the provisions of
STATEv. L.KRISHANAN[B.P.JEEVANREDDY,J.]
675
Chapter-VII of the Housing Board Act is in existence, the Government
cannot issue a notification under Section 4 of the Land Acquisition Act for
acquiring the land required for execution of the schemes by the Housing
Board. To repeat, the Housing Board is obliged to execute not only the
housing or improvement schemes prepared under the said chapter but also
certain other schemes referred to in Sections 35 and 36. For example, the
Government may conceive of a particular scheme and ask the Housing
Board to execute on such terms and conditions as the Government may
specify. In such a situation, there is no question of preparing a housing or
improvement scheme by the Housing Board in accordance with the
provisions of the Housing Board over again. So far as the scheme framed
by the Government is concerned, there is no enactment governing it. It can,
therefore, be a scheme as ordinarily understood. Similar would be the case
where the scheme undertaken by a local authority is made over to the
Housing Board by mutual agreement.
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In this connection, it is significant to notice that the Housing Board
Act speaks of the acquisition of land both as a part of a housing or D
improvement scheme framed by it under Chapter-VII and also independent of such a scheme. We may elaborate. Clause (a) of Section 39
(unamended) described one of the particulars to be stated in the draft
scheme. Clause (a) of Section 39 read as follows :
"39. Notwithstanding anything contained in any other law for the
time being in force, a housing or improvement scheme may provide
for all or any of the following matters, namely :
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(a) the acquisition by purchase, exchange, or othe1wise of any
property necessary for or affected by the execution of the scheme.''
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(emphasis added)
Similarly, Section 49(1) (unamended), which provides for publication
of a final scheme, read :
"49 (1). When any housing or improvement scheme has been
framed, the Board shall prepare a notice to that effect and specify-
(a) the boundaries of the area comprised in the scheme; and
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(b) the place or places at which particulars of the scheme, a map H
676
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SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.
of the area, and details of the land which it is proposed to acquire
and of the land in regard lo which it is proposed lo recover a
betterment fee, may be seen at reasonable hours."
(Emphasis added)
B
Reference may also be made in this connection to clause (b) of the
proviso to section 56. Section 56, as already noticed, provides for alteration
or cancellation of a housing scheme even after it is sanctioned by the Board
or the Government but before it is carried into execution. This power is,
however, conditioned by matters provided in the proviso. Proviso (b ),
C before it was deleted by the aforesaid Amendment Act, read thus :
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"Provided that
(b) if any alteration involves the acquisition, otherwise than by
agreement, of any 1and not previously proposed to be acquired in
the original scheme, the procedure prescribed in the foregoing
sections of the Chapter shall, so far as it may be applicable, be
followed as if the alteration were a separate scheme."
(Emphasis added)
These arc the provisions which speak of acquisition of land as a part
and parcel of a housing or improvement scheme framed under ChapterVII. We may now refer to the provision which speaks of acquisition of land
independent of a scheme framed under Chapter- VII.
Chapter-Vlll of the Act deals with acquisition and disposal of land.
Section 70, before it was substituted by the Amendment Act 5 of 1992, read
thus :
"70. Any land or any interest therein required by the Board for
any of the purposes of this Act may be acquired under the
provisions of the Land Acquisition Act, 1894 (Central Act I of
1894)."
It is significant to notice the language of this section. This section
enables the Government to acquire any land required by the Board "for
any of the purposes of this Act" - and purposes of the Act are not confined
H
to execution of the schemes framed by the Board under Sections 37 to 56
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STATE v. L. KRISHANAN [B.P. JEEVAN REDDY. J.)
677
(in Chapter-VII) but extend lo the execution of the schemes transferred to A
it, or agreed to be undertaken by the Board, \Vhich schemes have to be
executed by the Board as if they arc provided by the Housing Board Acl.
The execution of such schemes then becomes the purpose of the Board
under the Act. It is open to the (i'uvcrnn1ent, for cxan1ple, to acquire a
land and transfer it to the Housing Board for cxecuti: , the schc1nc devised
by the Government and as directed by it. Similarly. any land required for
executing a scheme devised by a local authority and the execution of which
has been undertaken by the Board is also required for the purposes of the
Act and can be acquired. In other words, Section 70 is an affirmation, a
recognition, of the power of the Government to acquire any land required
by the Housing Board for any of the purposes of the Act. It lakes in
acquisition of land required for the execution of a housing or improvement
scheme devised by the Housing Board under Sections 37 to 56 of the Act
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as also acquisition of land for other purposes of the Act. As a matter of
fact, we are not sure whether it would be right to curtail or restrict the
plenary power under Section 4 with reference to the provisions of the D
Housing Board Act merely because the land to be acquired is to be made
over to Housing Board for the
purposes of the Act. As mentioned
hereinabove, the notifications themselves do not say that the land is being
acquired for the purpose of a housing or improvement scheme framed by
the Housing Board under the provisions of the Act, though it is true, it was
undoubtedly meant for the Housing Board. Once it is held that the Housing
Board can execute schemes other than those framed by it under Sections
37 lo 56, as explained above, there appears to be no warrant for qualifying
E
the plenary power under Section 4 of the Land Acquisition Act with
reference to the said provisions of the Housing Board Act. As we shall
point out, earlier decisions of this Court have taken precisely this view. But
F
before we refer to them, it would be appropriate lo deal with the decision
of a two - Judge Bench of this Court in State of Tamil Nadu & Anr. v. A.
Mohammed Yousef and Ors., (1991] 4 SCC 224, affirming the decision of
the Madras High Court, upon which strong reliance is placed by the
respondents. Jn this decision, it has been held that a proceeding under
Land Acquisition Act read with Section 70 of the Housing Board Act can G
be commenced only after the framing of the scheme for which the land is
required, but not before.
We may mention, at the outset, that these appeals have been referred
to a three-Judge Bench by a Bench of two learned Judges because they H
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SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.
doubted the correctness of the decision in Mohammed Yousef, vide Order
dated February 16, 1993.
The facts in Mohammed Yousef are these : the notification under
Section 4 of the Land Acquisition Act was issued stating the public purpose
as construction of houses by the Tamil N~du Housing Board. Admittedly
not even a draft scheme was framed by the Housing Board by the date of
the said notification. On the contrary, the contention of the State was that
only after the acquisition proceedings are completed and possession of the
land taken, would they frame a scheme. Alternately, it was contended by
the State that framing of a scheme is not a pre-condition for issuance of a
valid notification under Section 4 of the Land Acquisition Act proposing
to acquire the land for construction of houses by the Housing Board. The
High Court had struck down the notification on the ground that the public
purpose mentioned therein was too vague in the absence of details relating
to the scheme for which the acquisition was sought to be made. The High
Court opined that in the absence of such a scheme with necessary particulars the land-owners cannot effectively avail of the opportunity given by
Section 5-A. In this Court, however, the main contention of the respondents land-owners was that the framing of a scheme by the Housing Board
under the provisions of the Housing Board Act is a pre-condition to a valid
notification under Section 4 where the land is proposed to be acquired-for
the purpose of the Housing Board. In view of the said contention, this
Court examined the scheme of the Act and held that inasmuch as acquisition of the land is a part and parcel of the execution of a scheme framed
by the Board under the Act, the acquisition must follow the scheme and
cannot precede it. The Bench further observed that unless such a scheme
with requisite particulars is duly published, it may not be possible for the
land-owners to object lo the proposed acquisition on the ground that the
land is not suitable for the scheme at all and/or that it does not serve the
stated public purpose. The Bench observed that the power of the Board
to frame a scheme is rcg~late<l by the provisions of the Act which, inter
G alia, provide a full opportunity to the affected persons to object to the
scheme. Even after the final publication of the scheme and after its coming
into force, it was pointed out, the scheme can yet be altered or cancelled
as provided under Section 56 of the Act. For all these reasons, the Bench
held that "a proceeding under Land Acquisition Act read with Section 70
H
of the Madras Housing Board Act can be commenced only after framing
STATEv. L KRISHANAN[B.P.JEEVAN REDDY,J.]
679
the scheme for which the land is required."
Unfortunately, the provisions in sub-sections (2) and (3) of Section
35 and Section 36 were not brought to the notice of the Bench nor were
the earlier Constitution Bench decisions of this Court brought to its notice,
to which decisions \Ve may nO\\' turn.