• NAGPUR IMPROVEMENT TRUST AND ANOTHER v . VITHAL RAO December 11 & Ors. v. U.P. Govt & Ors.

On June 15, 1967 the petitioner filed the writ petition under arts. 226 and 227 of the Constitution. In this petition the validity of the Improvement Act was challenged on various grounds, one of the grounds being that the Improvement Act was in violation of Art. 14 of the Constitution inasmuch as it empowered the acqui sition of lands at prices lower than those which would have been payable if they had been acquired under the Land Acquisition Act, 1894. The High Court held that as the acquisition is by the State in all cases where the property is required to be acquired for the P~s .of. a scheme !I°l!Illed ~y the Trust and such beinit po&1tlon, 1t IS not penruss1ble without v10Iating the guarantee under Article 14 of the Constitution for the State to acquire any property ~. \ 42 SUPREME COURT REPORTS (1973) 3 S.C.R. under the provisions of the Land Acquisition Act as amended by the Improvement Trust Act in so far as they relate to the basis of determination and payment of compensation. It must, therefore, be held that the provisions of paragraphs 10(2) and 10(3) in so far as they add a new Clause ( 3) (a) to Section 23 and a proviso to Sub-section (2) of Section 23 of the Land Acquisition Act are ultra vires as violating the guarantee of Article 14 of the Consti tution. In the result the petition was allowed, the award set aside, and the matter was remanded to the Land Acquisition Officer for determination of compensation aceording to the law and in the light of the decision by the High Court. As the case was important, the High Court granted a certifi cate under art. 132(1) and art. !31(1)(c) of the Constitution. Before we deal with the contentions of the learned counsel for the appellant we· may briefly examine the relevant provisions of the Improvemell'I Act. This Act came into force on December 25, 1936. It was passed before the Government of India Act, 1935 came into force. The Preamble states : "Whereas it is expedient to make provision for the in1- provement and expansion of the Town of Nagpur in the manner hereinafter provided .... " Section 3 of the Act creates the Nagpur Improvement Trust as a body corporate. Chapter IV of the Act deals with the Improve ment schemes. Section 26 provides for the matters which may be included in an improvement scheme. One of the matters is "the acquisition by purchase, exchange, or otherwise of any property necessary for or affected by the execution of the scheme." Section 27 describes various types of inlprovement schemes. They are (a) a general improvement scheme, (b) a re-building scheme; (c) a re-housing scheme; ( d) a street scheme; ( e) a deferred street scheme (f) a development scheme; (g) a housing accommodation scheme; (h) a future expansion or improvement scheme and (i) a drainage or drainage including sewage disposal scheme. The scheme in pursuance ol' which the lands in the present case were acquired was a housing accommodation scheme. Section 39, as stated above, provides for the issue of a notice after an improvement scheme has been framed. Under s. 41, the Trust is obliged to serve a notice of the proposed acquisition of land on certain persons. Section 43 enables the Improvement Trust to abandon an improvement scheme, ·after considering any objection, representation or statement of dissent received and after hearing all persons, or to apply to the State Government for sanction to A B c D E F G H A B c D E F G H NAGPUR IMPROVEMENT TRUST V. V. RAO (Sikri, C.J.) 43 the scheme with such modifications, if any, as the Trust may con sider necessary. The decision would be that of the Improvement Trust. Section 44 gives wide powers to the Government to sanction with or without modification or to refuse a sanction or to re<tum for consideration any improvement scheme submitted to it under s. 43. Under s. 45 the State Government is obliged to notify the sanction of an improvement scheme. Section 46 enables the Trust to alter an improvement scheme before it has been completed, subject to certain conditions. Chapter V deals with the powers and duties of the Trust where a scheme has been sanctioned. Chapter VI deals with acquisition and disposal of land. Under s. 58 the Ti:ust is enabled to acquire by purchase, lease or exchange any land within area comprised in a sanctioned scheme. Section 59 deals with compulsory acquisition and may be set out in full : It provides : "59. The Trust may, with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions <:Jf this Act, for carrying out any of the pur poses of th ts Act." Section 60 says that "a Tribunal shall be constituted, as provided in section 62, for the purpose of performing the functions of the Court in reference to the acquisition of land for t.11e Trust, under the Land Acquisition Act, 1894." Section 61 modifies the Land' Acquisition Act in the following words : "For the purpose of acquiring land under the Land AcquisitioD' Act, 1894, for the Trust- ( a) the Tribunal shall except for the purposes of sec tion ( 54) of that Act, be deemed to lie the Court, and the President of the Tribunal shall be deem ed to be the Judge thereunder; (b) the Act shall be subject to the. further modifica tions as indicated in the Schedule; ( c) the President of the Tribunal may summon wit nesses and enforce their attendance and may compel the production o4' documents, same means, and so far as may be, in the same manner, as is provided in case of a Civil Court under the Code of Civil Procedure, 1908; and ( d) the award of the Tribunal shall be deemed to be the award of the Court under the Land Acqui sition Act, 1894, and shal! be final." )ly 44 SUPREME COURT REPORTS (1973] 3 S.C.R. We need not deal with the provisions dealing with the constitution ·of the Tribunal, remuneration of its members, etc. Section 68 enables an owner to apply to the Trust requesting that the acquisition of land not required for the purposes of a scheme may be abandoned on his executing an agreement observe conditions specified by the Trust in respect of the deve lopment of the property and to pay a charge to be calculated in accordance with subi-section (2) of section 69 of the Act. The Trust can abandon an acquisition without requiring sanction of the Govermnent. The Schedule modifies the Land Acquisition Act in various respects. The relevant modifications are these :

#1. After clause (e) of section 3, following clause shall be deemed to be inserted, namely,- " ( ee) the expression 'local authority' includes the '.{'rust constituted under the Nagpur improvement Trust Act, 1936."

#2. ( 1) The first publication of a notice of an im provement scheme under section 39 of the Nagpur Im provement Trust Act, 1936, shall be substituted for, and have the same effect as publication in the official Gaz ette, and in the locality of, a notification under sub section ( 1) of section 4, except where a declaration under section 4 or section 6 has prevkmsly been made and is still in force. (2) Subject to the provisions of clauses 10 and 11 of this Schedule, the issue of a notice under sub-section ( 4) of section 32 o.f the Nagpur Improvement Trust Act, 1936, in the case of land acquired under that sub-section, and in any other case the publication of a notification under section 45 of the Nagpur Improvement Trust Act, 1936, shall be substituted for, and have the same effect as a declaration by the State Government under section 6, unless a declaration under the last mentioned section has previously been made and is in force.

#3. The full-stop at the end of section 11 shall be deemed to be changed to a semi-colon, and the following shall be deemed to be added, namely : - "and (iv) the costs which, in his opinion, should be allow -ed to any person who is found to be entitled to compen sation and who is not entitled to receive the additional '8UD1 of fifteen per centum mentioned in sub-section ( 2) A B c D E F G H NAGPUR IMPROVEMENT TRUST v. V. RAO (Sikri, C.J.) 4S A B of section 23 as having been actually and reasonably in curred by such person in preparing his claim and putting his case before the Collector. The. Collector may disallow wholly or in part costs incurred by any person, if he considers that the claim mad-, by such person for compensation is extravagant." 4 ......... : : ............. . 5. ( 1) In sub-section (3) of section 17 after the figure "24''" the words, figures, and letter "or section 24-A" shall be deemed to be inserted. c ( 2) To section 17, the following shall be deemed to be added, namely:- " ( 5) When proceedings have been taken under this section for the acquisition of any land, and any person sustains damage in consequence of being suddenly dis possessed of such land, compensation shall be paid SJJch petson for such dispossession." Para 6 of the Schedule inserts section 17-A. It reads: D "17 -A. In every case referred to in section 16 or section 17,. Collector shall, upon payment of the cost of acquisition, make overcharge of the land to the Trust and the land shall thereupon E vest in the Trust, subjeot to the liability of the Trust to pay any further costs which may be incurred on account of its acquisition." F G H Para 10 amends section 23 thus : - "10(1) ............................... . 10(2) The full-stop at the end of sub-section (2) of section 23 shall b,e deemed to be changed to a colon, and the following proviso shall be deemed to be added :- "Provided that this sub-section shall not apply to any land acquired under the Nagpur Improvement Trust Act, 1936, ex cept- ( a) buildings in the actual occupation of the owner or occupied free of rent by a relative of owner, and land appurtenant thereto, and (b) gardens not let to tenants but used by the owners. as a place of resort." 10(3) For the purposes of clause first of sub-section· (I ) of this section- ( a) the market -value of the land shall be the market value according to the use to which the land wa& . -46 SUPREME COURT REPORTS (1973] 3 S.C.R. put at the date with reference to which market-value is to be determined under clause; . ............. " Another advantage which is, said to accrue to these persons is .provided by s. 48-A, as inserted by para 14. It reads: "48-A. ( 1) If within a period of two years from the date of the publication of the declaration under section 6 in respect of any land, the Collector has not made an award under section 11 with respect to such land, the owner of the land shall, unless he has been to a material extent responsible for the delay, be entitled to receive compensation for the damage suffered by him in con sequence of the delay. (2) The provisions of Part III of tl1is Act shall apply so far as may be, to the determination of the com pensation payable under this section." A B c It would be seen that the effect of the modifications in respects is tremendous. First, the owner whose land is acquired D under the Improvement Act is paid compensation not according to the market viilue of the land but the market value according to the use to which the land was put at the date with reference to which the market value is to be determined in that clause. In other words, if the land is being used for agricultural purposes, even though it has a potential value as a building site, the potential E value is to be ignored. The second respect in which the owner suffers if the land is acquired under the Improvement Act is that he does not get a solatium of 15 % which he would have got if the It is land had been acquired under the Land Acquisition Act. true that he has some minor advantages which have been pointed out by the learned counsel but they have no comparison in value p to the loss suffered by virtue of the market value being determined according to the use to which the land was being put or the loss of 15% of the market value1of the land. The first point which was raised was : whether it is the State which is the acquiring authority or it is the Improvement Trust It which is the acquiring authority, under the Improvement Act. seems to us that it is quite clear, especially in view of s. 17 A as G inserted by para 6 of the Schedule, that the acquisition will be by the Government and it is only on payment of the cost of acquisition to the Government that the lands vest in the Trust. It is true that instance, but 1he acquisition is for the Trust and may be at its nevertheless the acquisition is by the Government. If this is so, then it is quite clear that the Government can H acquire for a housing accommodation scheme either under Land ~cquisition Act or under the Improvement Act. If this is (' , \_ (iii / NAGPU!l IMPROVEMllNT TRUST v. V. RAO (Sikri, C.J.) ,7 A so, it enables the State Government to discriminate between one owner equally situated from another owner. B This Court held in Nandeshwar Prasad v. U.P. Govt.(') that the fact that 'the lands could be acquired for a scheme under the Kanpur Urban Development Act (U.P. Act VI of 1945) did not prevent the Government from acquiring the lands for the same purpose under the Land Acquisition Act (as amended by Kanpur Act). We may mention that the Kanpur Act amended the purpose of the Land Acquis; tion Act by the schedule for acquisition of land for the Board in a similar manner as Nagpur Improvement Trust Act. c A similar point was abandoned in P. Vaijravelu Mudaliar v. Special Deputy Collector, Madras(') by Mr. Viswanatha Sastri in view of the above decision of this Court in Kanpur case. D E F G The question then arises whether the High Court is right holding that the impugned provisions were hit by Art. 14 of the Constitution. It is now well-settled that the State can make a reasonable It is equally well classification for the purpose of legislation. settled that the classification in order to be reasonable must satisfy two te&ts (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sough1 to be achieved by the legislation in question. In this connection it must be borne in mind that the object itself should be lawful. The object itself cannot be discriminato;y, for otherwise, for instance, if the object is to discriminate against one section of 1he minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved. What can be reasonable classification for the purpose C>f deter mining compensation if the object o{ the legislation is to compul sorily acquire land for public purposes ? It would not be disputed that different principles of compen sation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an advocate. Why is this sort of classification not sustainable ? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type or another type. H Can classification be made on the hp.sis of the public purpose for the purpose of compensation for which land is acquired ? In (I) A.l.R. 1964 S.C. 1217. (1) [1965] I S.C.R. 614, 619. 48 SUPREME COURT REPORTS [1973] 3 s.c.R. other words can the legislature lay down different principles •Of compensation for lands acquired say for a hospital or a school or a Government building ? Can the legislature say that for a hos pital land will be acquired at 50% of the market value, for a school at 60% of the value. and for a Government building at 70% oi 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 other. Art. 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 to us that ordinarily a classification based on the public purpose is not permissible under Art 14 for the purpose of determining com pensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compen sation. Can classification be made on the basis of the authority In other words can different principles of acquiring the land ? compensation be laid if the land is acquired for or by an Improve ment Trust or Municipal Corporation 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 by one authority or the other. It is equally immaterial whether it is one Acquisition Act or If the another Acquisiton Act under which the land is acquired. existence of two Acts enables the State to give one owner different treatment from another equally· situated the owner who is discri minated against, can claim the protection of Art. 14. acquiring schools, one for acquiring It was said that if this is the true position the state would find it impossible to clear slums, to do various other laudable things, If this argument were to be accepted it would be totally destructive of the protection given by Art. 14. It would enable the State to have one law for acquirin_g lands for hospital, one law for acquir clearing slums, another for acquiring lands for Government in New Delhi and buildings; one another for acquiring lands in Old Delhi. in many cases, the value of the land has increased not because of any effort by the owner but because of the general develop ment of the city in which the land is situated. There is no doubt that this is so, but Art. 14 prohibits the expropriation of the un earned increment of one owner while leaving his neighbaur un touched. This neighbour could sell his land reap the unearned increment. tax unearned increment it should be done throughout the State. The State can not achieve this object piece-meal by compulsory acquisition of land of some owners leaving others alone. If the object is to clear If the object of the legislation is to It was A 8 c E F G H / NAGPUR IMPROVEMENT TRUST V. V. RAO (Sikri, C./.) 49 A B c D slums it cannot be done at the expense of the owners whose lands are acquired, unless as we have said the owner are directly benefited If the objeot is to build hospitals it cannot. be by the scheme. done at the expense of the owners of the land which is acquired. The hospital, schools etc. must be built at the expense of the whole community. It will not be denied that a statute cannot tax some owners of If the owners of land leaving untaxed others equally situated. the land cannot be taxed differently how can some owners be in directly taxed by way of compulsory acquisition ? It is urged that if this were the law it. will tie the hands of the State in under taking social reforms. We do not agree. There is nothing in the Constitution which debars the State from bettering the lot of millions of our citizens. For instance there is nothing to bar the State from taxing unearned increment if the object is to deny owners the full benefit of increase of value due to development of a town. It seems to us, as we have already said, that to accede to the contentions of the appellant and the States would be destructive of the protection afforded by Art. 14 of the Constitution. The States would only have to constitute separate acquiring bodies for each city, or Division or indeed to achieve one special public pur- pose and l_ay down different principles of compensation. In P. Vajrave/u Mudaliar v. Special Deputy Collector, Madras(') there were two Acts under which the land of an owner could be acquired. The land could have be~ acquired for E various schemes under the Land Acquisition Act, referred to as the Principal Act, in the judgment, and the Amending Act (The Land Acquisition (Madras Amendment) Act, 1961). This Court observed: - r "The land could have been acquired for all the said purposes under the Principal Act after paying the market value of the land. The Amending Act em powers the State to acquire land for housing scheme at a price lower than that the State has to pay if the same was acquired under the Principal Act." The Court examined various justifications G fications which were put forth by cluded:- the State, and "From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought to be achieved. object of the Amendine; Aot in itself may project differences in the lands sought to be acquired under the two Acts. This argument puts the cart before the It is one thing to say that the existing differ horse. It is said H (!) [1965] I S.C.R. 614. S-L631 Supreme Court/73 the classi then con 50 SUPREME COURT REPORTS [1973] 3 S.C.R. and properties have ences between persons a reasonable relation to the object sought to be achieved and it is totally a different thing to say that the object of the Act itself creat-,,d the differences. Assuming that the said proposition is sound, we cannot discover any differences in the people owning lands or in the lands on tho~ basis of the object. The object acquire lands for housing schemes at a low price. For achieving that object, any land falling in any of the said catei:ori·~s can be acquired under the Amending Act. So, too, for a public purpose any such land can be acquired under the principal Act. We, therefore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principal of reasonable classification. We, therefore, hold that the Amending Act clearly infringes Art. 14 of the Consti tution and is void". In Balammal & Ors. v. State of Madras(') in which the facts are substantially similar, the Board constitured under the Madras City Improvement Trust Act, (Madras Act 16 of 1945) was authorised by virtue of sec. 71, with the previous sanction of the Government, to acquire land under the provisions of the Land Acquisition Act, 1894 for carrying out any of the purposes of the Act which included Town Expansion Scheme (This sec. 71 is equivalent to sec. 59 of the Improvement Act). For the pur pose of acquiring land for the Board under the Land Acquisition Act, 1894 sec. 73 provided inter alia, that the said Act shall be subjected to the modifications specified in the Schedule (This section 73 corresponds to sec. 61 of the Improvement Act). The Schedule to the Act provided for modification in the Land Acqui sition Act for certain specific purposes. The Madras Act of 1945 as replaced by the Madras City Improvement Trust Act (Madras Act 37 of 1950) made an important change inasmuch as the result was that by the change persons whose lands were compulsorily acquired under the Madras Act 37 of 1950 were deprived of the right to the solatiwn which would be awardable if the lands were acquired under the Land Acquisition Act. In this connection this Court observed : "But, in our judgment, counsel for the owners is right in contending that sub-cl. (2) of cl. 6 of Schedule to Act 37 of 1950, insofar as it depriwd the owners of the lands of the statutory addition to the mar ket-value of the lands under s. 23(2) of :ile Land Acquisition Act is violative of the equality clause of the If the Constitutjon, and is on that account void. (I) [1969] l S.C.R. 90. A B c D E F G A B c D E F G NAGPUR IMPROVEMENT TRUST v. V. RAO (Sikri, C.J.) 51 State had accquired the lands for improvement of the town under the Land Acquisition Act, the acquiring authority was bound to award in addition to the market the Land value 15% statutory under s. 23(2) of Acquisition Act. But by acquiring the lands under the Land Acquisition Act as modified by the Schedule to the Madras City Improvement Trust Act 37 of 1950 for the Improvement Trust which is also a public pur pose lhe owners are, it is claimed, deprived of the right to that statutory addition. An owner of land is ordi narily entitled to receive the solatium in addition to the market-value for compulsory acquisition of his land, if it is acquired under the Land Acquisition Act, but not if it is acquired under the Madras City Improve ment Trust Act. A clear case of discrimination which infringes the guarantee of equal protection of t1ie law arises, and the owners of the lands which are compul· sori!y acquired must on 'he decisions of ;this Court, be deemed invalid". After reviewing some ,_, ... -lier cases, the Court held : "We, therefore, hold that cl. 6 sub-cl. (2) of the Schedule read with s. 73 of Madras Act 37 of 1950 which deprives the owners of the statutory solatium at the rate of 15 % on the market-value of the lands, is invalid, and the owners of lands are -entitled to the statutory solatium under s. 23(2) of the Land Acquisition Act in consideration of compulsory acquisition of their land." The learned counsel was not able to satisfy us that the above case was distingttishable. We are of the opinion that the case In this view of was rightly dcx:ided and must govern this case. the matter, it -is not necessll!Y to refer to all the cases referred to us at the Bar. We may mention that Mr. Tarkunde also placed reliance on Art. 31(A)(l)(a) of the Constitution. It is now to agrarian well settled that Art. 31 (A~ (1 )(a) has relevance reforms and development. · It has nothing to do with acquisition of land for building of a capital of a State. In the result the appeal fails and is dismissed with costs. G.C Appeal dismissed.