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TMI Blog1992 (9) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... sition was made under Section 29(1) of the Defence of India Act, 1962. The requisitioned land included 157 Bighas and 6 biswas belonging to Diwan Hari Krishan Khosla who died during the pendency of the proceedings in the High Court. His sons Avtar Krishan Khosla and Chand Khosla were impleaded as his legal representatives by an order dated 6th May, 1974. Later on, these lands were acquired by the Central Government under Section 7(1) of the Act. The Competent Authority, Jullundur, determined the compensation at ₹ 1,62,109.37/-. An offer of payment was made to Hari Krishan Khosla who was called upon to communicate his acceptance. By his written reply dated 22nd July, 1971 he requested that the payment be made to him under protest. At the same time, he objected to the inadequacy of the amount awarded to him. He wanted an arbitrator to be appointed and claimed interest of the rate of 6 percent per annum. The Competent Authority refused to pay even the amount of compensation determined. Aggrieved by the said refusal, Hari Krishan Khosla filed a writ petition. 5. When the matter came up before the learned Single Judge he directed that it should be heard by a Division Bench. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r other of the alternative methods which resulted in acquisition. Therefore, the cases cited in this behalf are clearly distinguishable. (iv) The classification between requisitioned and non-requisitioned land for the purpose of paying less compensation to one and more to the other is not founded on any intelligible differentia. Nor is there any rational nexus to the object of acquisition of property for a public purpose. (v) The liability to pay interest is totally absent under the Act while there is a specific provision concerning the same under the Land Acquisition Act. Thus, Civil Appeal No. 1130-31 of 1975 are directed against the judgment and order dated 30th May, 1974 of the Punjab and Haryana High Court in Civil Writ Nos. 1572 and 1574 of 1972, questioning its correctness. 8. Mr. N.N. Goswamy, learned Counsel, appearing for the Union of India submits that. Section 8(1) of the Act lays down the principles and the method of determining compensation and under Clause (e) of Sub-section (1) of the said section the Arbitrator is enjoined to determine the compensation which appears to him to be just. Therefore, what is required to be paid under the Act is the just compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rust (supra) was explained. It is the ratio of this judgment which squarely applies to this case. 13. Without prejudice to the above submissions, learned Counsel for the appellant argues that in any event the Act had come to be included in the 9th Schedule of the Constitution with effect from 10th August, 1975 as Item 89. The effect of such inclusion will be; the protection under Article 31B of the Constitution will be available. The said Article forbids an attack on any one of the legislations included in the 9th Schedule as violative of Articles 14 and 19 of the Constitution. This will be so, notwithstanding the impugned judgments of the High Court as though the said provision was valid from the beginning. That exactly is the ratio in Jagannath etc. etc. v. The Authorised Officer, Land Reforms and Ors. etc. [1972]1SCR1055 . 14. There is one other case to which reference has to be made where this Court upheld the grant of solatium under the Assam Requisitioning Act. That turned on the language of Section 4(3) of the Act. Therefore, that cannot be the ground to award solatium in a case falling under the Act, more so, in the absence of any specific provisions in this regard. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 983. These authorities fully support the stand of learned Counsel for the respondent. From this point of view the judgment of the High Court should be upheld. 19. Mr. Harish N. Salve, learned Counsel appearing on behalf of respondents in SLP (C) No. 1780 of 1991 submits that the Arbitrator in November 1977 award 15 per cent solatium and 6 percent interest on the enhanced compensation. It is that which is questioned. Therefore, should the Court agree that the appellant's only this part of the award will go while the rest would remain 20. In Civil Appeal Nos. 4688-94 of 1989 for 16 years no Arbitrator was appointed. Under exactly similar situation this Court in Civil Appeal Nos. 470 and 471 of 1985 dated 11th February, 1985 took the view that the award does not call for any interference. 21. In Civil Appeal No. 995 of 1992, Mr. O.P. Sharma, learned Counsel for the respondents urged that should the arguments of the appellants prevail, it is only the enhanced compensation that could be interfered with. 22. Mr. D.V. Sehgal, learned Counsel for the respondents in Civil Appeal No. 1981 of 1991 supports Mr. R.K. Jain, learned Counsel for the petitioners in SLP (C) No. 6912 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and buildings were requisitioned under the Defence of India Act, 1939 and the rules made thereunder. Those properties continued to be subject to requisition under the Requisitioned Land (Continuance of Powers) Act, 1947 (XVII of 1947). However, this Act was to expire on 31st of March, 1952. With regard to the property outside the Delhi area Government of India had no power to requisition. In some cases, the States were asked to requisition the property for the purpose of Union. A judicial decision held that the exercise of the State power for the purpose of Union would not be proper. Finding that a large number of houses in the various cities of India had been requisitioned for Central Government purposes it was considered necessary to have an Act empowering the Central Government to requisition and acquisition. For this purpose, Requisitioning and Acquisition of Immovable Property Ordinance, 1952 (III of 1952) was promulgated. This Ordinance was replaced by the Act. 29. In the above background, we will proceed to consider the salient features of the Act and as to how they stand in comparison to the Land Acquisition Act (Central Act 1 of 1894). Section 3 empowers a competent au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was losing at the date of acquisition. 33. Again at page 474 it is observed: The argument on behalf of the appellant that the basis did not provide for the payment of just equivalent could not be accepted by this Court because of the fact that the appellant had produced no material on which its plea could be sustained. In this case, however, there is no such difficulty. Clause (a) of Section 8(3) lays down a principle aimed at giving the owner of the land something which approximates its just equivalent on the date of acquisition. Clause (b) however directs the arbitrator to measure the price arrived at in terms of Clause (a) with twice the amount of money which the requisitioned property would have fetched if it had been sold on the date of requisition and to ignore the excess of the price computed in terms of Clause (a) over that in terms of Clause (b). The position bears a close similarity with the facts in Bela Banerjee's case, where the legislature directed that the excess of the value as on the 31st December, 1946 was to be ignored. The basis provided by Clause (b) has nothing to do with the just equivalent of the land on the date of acquisition nor is there any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efully quote from Salmond on Jurisprudence 1966 Twelfth Edition Chapter 8 at page 246-247: Ownership denotes the relation between a person an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons (a). Though in certain situations some of these rights may be absent, the normal case of ownership can be expected to exhibit the following incidents (b). First, the owner will have a right to possess the thing which he owns. Secondly, the owner normally has the right to use and enjoy the thing owned: the right to manage it, i.e., the right to decide how it shall be used; and the right to the income from it.... 40. Then again, under the Act, the acquisition even though it is for a public purpose is restricted to the two clauses of Section 7(3) of the Act to which we have already made a reference. Thus two clauses of Section 7(3) constitute statutory embargo. 41. Under the Land Acquisition Act, the power of Eminent Domain could be exercised without any embargo so long as there is an underlying public purpose. In our considered view, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. 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 compensation. Can classification be made on the basis of the authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement 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 another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment against, can claim the protection of Article 14. 44. We will now refer to Prakash Amichand Shah's case (supra). This case considered the rulings in Vajravelu Mudaliar s case (supra) as well as Nagpur Improvement Trust case (supra). A contention was rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State which has got a supply and maintain large public services at great cost should always pay in addition to a reasonable compensation some amount by way of solatium. The interest of the public is equally important. In any event it is not shown that the compensation payable in this case is illusory and unreal. This ruling is an authority for the proposition that solatium is not a must in every case disregardful of the circumstances. Mr. Goswami, learned Counsel for the Union of India is justified in placing reliance on this ruling to advance his contention that the provision in question is not discriminatory. 46. The next case that could be usefully referred to is T.M. Peter's case (supra). This case ; arose under Town Planning Act, 1932 (Travancore Act 4 of 1108). This was a case of acquisition. The contention was raised in paragraph 16 to the following effect:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the property was acquired by the Agra Town Improvement Trust under the provisions of U.P. Town Improvement (Appeals) Act, 1920 (3 of 1920), the question arose whether the award of solatium should be made. In paragraph 7 at page 215 it was stated thus: The importance of the award of solatium cannot be undermined by any procedural blockades. It follows automatically the market value of the land acquired, as a shadow leaves no discretion with the court in not awarding it in some cases and awarding in others. Since the award of solatium is in consideration of the compulsory nature of acquisition, it is a hanging mandate for the court to award and supply the omission at any stage where the court gets occasion to amend or rectify. This is the spirit of the provision, wherever made. 49. However, it is to be noted that the denial of solatium by the High Court was in the following circumstances set out in paragraph 9: The denial of the solatium to the appellant on the sum awarded by the Tribunal is based on the reasoning that firstly the Collector had not awarded solatium and the appellant while taking the matter to the Tribunal had not raised such claim. Secondly after the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Darrang AIR1982SC1214 it has been held as under: There is, however, one contention advanced by Mr. Nandy which, in our opinion, deserves to be accepted. He contends that in the matter of payment of solatium, no discrimination can be made between acquisitions under the Assam Act and those made under the Land Acquisition Act. Section 4(3) of the Assam Act itself says that if a land is acquired under that Act, the State Government shall be empowered to apply to such land any of the provisions of the Land Acquisition Act, 1894. In a judgment (State of Kerala v. T.M. Peter, [1980]3SCR290 given by this Court very recently, to which Mr. Nandy has drawn our attention, it was held that there is no justification for discriminating between an acquisition under one Act and acquisition under another Act in so far as payment of solatium is concerned. This should be more so in respect of an acquisition to which the State Government is empowered to extend the provisions of the Land Acquisition Act. Mr. Naunit Lal has not been able to controvert this position in view of the judgment to which we have referred above. We accordingly direct that the State Government shall pay to the appellant so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immovable property and separate proceedings are taken under the Land Acquisition Act, there is no possibility of acquiring the property under the Land Acquisition Act. 56. Reference should also be made to Section 8(1)(e) of the Act. That refers to three things: (i) The amount of compensation which appears to be just; (ii) the circumstances of each case; and (iii) the provisions of Sub-sections (2) and (3). The effect of this classification, in our opinion, is that the Arbitrator must determine the amount of compensation which appears to him to be just but he must have regard to Sub-sections (2) and (3) of Section 8. Therefore, where, a property which was subject to prior requisition comes to be acquired the compensation should be awarded on the basis of the principles adumbrated in this Act. 57. The comparison of acquisition under this Act to an acquisition under the Land Acquisition Act seems to be odious in view of the dissimilarities between the two Acts which we have clearly indicated above. It is true that originally the requisition was under the Defence of India Act, 1962 in some cases. Even then the property could be acquired in view o f Section 25(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms (Fixation of Ceiling on Land) Act, 1961 which was declared void by this Court came up for consideration in Jagannath etc. etc. v. The Authorised Officer, Land Reforms and Ors. etc. [1972]1SCR1055 . Paragraphs 15 and 16 are extracted as below: On behalf of some of the respondents and the intervener, the Attorney-General of India, it was argued that no re-enactment of the Act was necessary. Our attention was drawn to the wide scope of Article 31-B which sought to cure the defect, if any, in the Acts specified in the Ninth Schedule on the ground that any such Act or any provision thereof was inconsistent with or took away or abridged any of the rights conferred by any provisions of Part III of the Constitution. The words of Article 31-B, it was argued, made it amply clear that this was sought to be done not only prospectively but retrospectively by the use of the words None of the Acts.... shall be deemed to be void or ever to have become void on the ground of the inconsistency mentioned. The removal of the defect was to have effect... Notwithstanding any judgment, decree or order of any court or tribunal to the contrary. In other words, this meant that if the defect in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e B from the ground of attack based on infringement of Article. 62. Upholding these contentions it was observed in paragraph 23: Apart from the question as to whether fundamental rights originally enshrined in the Constitution were subject to the mandatory process of Article 368 it must now be held that Article 31-B and the Ninth Schedule have cured the defect, if any, in the various Acts mentioned in the said Schedule as regards any unconstitutionality alleged on the ground of infringement of fundamental rights, and by the express words of Article 31-B such curing of the defect took place with retrospective operation from the dates on which the Acts were put on the statute book. These Acts even if void or inoperative at the time when they were enacted by reason of infringement of Article 13(2) of the Constitution, assumed full force and vigour from the respective dates of their enactment after their inclusion in the Ninth Schedule, read with Article 31-B of the Constitution. The States could not, at any time, cure any defect arising from the violation of the provisions of Part III of the Constitution and therefore, the objection that the Madras Ceilings Act should have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendments, by which additions were made to the Ninth Schedule on or after April 24, 1973 will be valid only if they do not damage or destroy the basic structure of the Constitution. 65. On this basis, it is contended that Article 14 is the basic structure and since Section 8(3)(a) offends that Article it damages or destroys the basic structure of the Constitution. We have already held in answer to Question No. 1 that there is no violation of Article 14. If this be so, the ratio of Jagannath's case (supra) would squarely apply. 66. In the result, these appeals will stand allowed with costs. The judgments of the High Court and the award are set aside and the matter is remitted to the Arbitrator to determine the award in accordance with the provisions of this Act. SLP (C) No. 1780 of 1991: 67. Leave granted. 68. In this case, we set aside the award of 15% solatium and 6% interest on enhanced compensation since permissible under this Act. The appeal is allowed only to that extent. Civil Appeal Nos. 4688-94/89 2674-85/89; 69. This is a case in which for 16 years no Arbitrator was appointed. We think it is just and proper to apply the principle laid down in Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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