REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 137 OF 2003
Ramji Veerji Patel & Ors. .... Appellants
Versus
Revenue Divisional Officer & Ors. ....Respondents
JUDGMENT
R.M. Lodha, J.
The appellants were unsuccessful in challenging the
acquisition of their land before the Single Judge as well as the
Division Bench of the Madras High Court. They are in appeal, by
special leave.
2. On the requisition of Cholan Roadways Corporation
Limited, Kumbakonam (for short, `the Corporation') for making
available land for expansion of their depot, particularly for a
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workshop, at Chidambaram, the State Government of Tamil Nadu (for
short, `the Government') issued a notification under Section 4(1) of
the Land Acquisition Act, 1894 (for short, `the Act') which was
published in the Gazette on March 3, 1989 notifying for general
information that the land mentioned therein, namely, land
admeasuring 1.45 acres comprised in T.S. No. 14, classified as
government wet land in Chidambaram Municipal Town, South Arcot
District was needed for the above public purpose. The notification
under Section 4(1) was also published in the two newspapers on
November 18, 1988 and in the locality on March 27, 1989. The
appellants filed objections to the acquisition before the Revenue
Divisional Officer (for short, `RDO'), Chidambaram. The diverse
objections to the acquisition were raised; one of such objections
being that the other lands behind the existing depot of the
Corporation were available and could be used for the purpose for
which their land was sought to be acquired. They stated that their
family was dependant upon the income from the saw mill existing on
the land and by compulsory acquisition of their land, they would be
deprived of the sole means of livelihood.
2
3. The RDO considered the objections put forth on behalf of
the appellants and submitted his report to the Government on
conclusion of the enquiry under Section 5-A of the Act.
4. It appears that when the report of the RDO was under
consideration, the appellants sent a representation to the
Government bringing to its notice that the land belonging to Tamil
Nadu Evengelical Lutheran Church (`TELC') just behind the existing
depot has been advertised for sale and, therefore, instead of
resorting to the compulsory acquisition of the appellants' land, the
land of TELC may be acquired.
5. The Government was not persuaded by the appellants'
objections and the declaration under Section 6 of the Act was issued
which was published in the Gazette on March 21, 1990. The
publication of the Section 6 declaration was made by other modes as
well.
6. The appellants challenged the notification under Section
4(1) and declaration under Section 6 of the Act in the writ petition
before the Madras High Court. In opposition to the writ petition,
counter affidavit was filed on behalf of the Government. The learned
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Single Judge of the High Court dismissed the writ petition by his order
dated November 18, 1998.
7. Against the order of the Single Judge, the appellants
preferred intra-court appeal which has been dismissed by the
impugned order on July 25, 2001.
8. Mr. Pallav Shishodia, learned senior counsel for the
appellants raised two-fold contention. His first contention was that the
appellants' objections about the availability of land belonging to TELC
which is situated behind the existing depot of the Corporation and
was available for sale were not rationally considered by the RDO and
the Government. He submitted that the livelihood of about 40
members of the family was directly affected by the compulsory
acquisition of their land and, therefore, the objections ought to have
been considered in a reasonable manner more so since the public
purpose for which the appellants' land was sought to be acquired
could have been easily met by the acquisition of the TELC's land. In
this regard, he referred to three decisions of this Court, namely, (i)
Delhi Administration v. Gurdip Singh Uban and Others1, (ii) Hindustan
Petroleum Corpn. Ltd. v. Darius Shapur Chenai and others2 and (iii)
1 (2000) 7 SCC 296
2 (2005) 7 SCC 627
4
Radhy Shyam (Dead) Through LRs. and others v. State of Uttar
Pradesh and Others3.
9. The second contention of the learned senior counsel for
the appellants was that the acquisition of the appellants' land by the
Government was for the purposes of the Corporation and the
Corporation being a `company' for the purposes of the Act, the
procedure contemplated in Part VII of the Act was required to be
mandatorily followed and since the said procedure has not been
followed, the acquisition is bad in law. In this regard, Mr. Pallav
Shishodia placed reliance upon a decision of this Court in State of
Punjab and Others v. Raja Ram and others4.
10. On the other hand, Mr. B. Balaji, learned counsel for the
State of Tamil Nadu supported the view taken by the Single Judge
and the Division Bench of the High Court. He submitted that the
proceedings for acquisition of the appellants' land have been initiated
and concluded in accordance with the procedure prescribed in the
Act. There is no illegality in the acquisition of the appellants' land. He
referred to the counter affidavit filed on behalf of the Government
before the High Court in opposition to the writ petition.
3 (2011) 5 SCC 553
4 (1981) 2 SCC 66
5
11. The Act was enacted in 1894 for the acquisition of land
needed for public purposes and for companies and for determining
the amount of compensation to be made on such acquisition. The Act
has undergone some amendments in 1919, 1921, 1923, 1933, 1962,
1967 and 1984; the last major amendments being by the Land
Acquisition (Amendment) Act, 1984 (Act 68 of 1984).
12. The provisions contained in the Act, of late, have been felt
by all concerned, do not adequately protect the interest of the land
owners/persons interested in the land. The Act does not provide for
rehabilitation of persons displaced from their land although by such
compulsory acquisition, their livelihood gets affected. For years, the
acquired land remains unused and unutilised. To say the least, the
Act has become outdated and needs to be replaced at the earliest by
fair, reasonable and rational enactment in tune with the constitutional
provisions, particularly, Article 300A of the Constitution. We expect
the law making process for a comprehensive enactment with regard
to acquisition of land being completed without any unnecessary
delay.
13. Reverting back to the Act, that Section 5-A of the Act
confers a valuable right on the person interested in any land which
has been notified under Section 4(1) as being needed for a public
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purpose or likely to be needed for public purpose is beyond doubt. By
this right, the owner/person interested may put forth his objections not
only in respect of public purpose but also the suitability of the
acquisition in respect of his land. The objector gets an opportunity
under Section 5-A to persuade the Collector that his land is not
suitable for the purpose for which the acquisition is being made or the
availability of other land suitable for that purpose. Section 5-A
proceedings are two-tier proceedings. In the first step, the objections
by the owner/person interested are heard by the Collector and a
report is submitted to the Government. In the second step, the final
decision is taken by the Government on the objections so furnished
by the person interested and the consideration of the report submitted
by the Collector.
14. In Munshi Singh and others v. Union of India5, in
paragraph 7 of the Report, this Court stated as follows :
"7. Section 5-A embodies a very just and wholesome
principle that a person whose property is being or is
intended to be acquired should have a proper and
reasonable opportunity of persuading the authorities
concerned that acquisition of the property belonging to
that person should not be made. ... The legislature has,
therefore, made complete provisions for the persons
interested to file objections against the proposed
acquisition and for the disposal of their objections. It is
only in cases of urgency that special powers have been
5 (1973) 2 SCC 337
7
conferred on the appropriate Government to dispense
with the provisions of Section 5-A: "
15. The above legal position has been reiterated by this Court
in various decisions including the decisions of this Court in Hindustan
Petroleum Corpn. Ltd.2 and Radhy Shyam3 cited by Mr. Pallav
Shishodia. In Hindustan Petroleum Corpn. Ltd.2 , this Court in
paragaraph 6 of the Report stated thus :
"6. It is not in dispute that Section 5-A of the Act confers a
valuable right in favour of a person whose lands are sought
to be acquired. Having regard to the provisions contained
in Article 300-A of the Constitution, the State in exercise of
its power of "eminent domain" may interfere with the right
of property of a person by acquiring the same but the same
must be for a public purpose and reasonable compensation
therefor must be paid."
16. In Union of India v. Mukesh Hans6, this Court referred to
Munshi Singh5 and in paragraph 35 of the Report stated that the
limited right given to the owner/person interested under Section 5-A
of the Act to object to the acquisition proceedings is not an empty
formality and is a substantive right.
17. As a matter of law, under the Act, the only right that the
owner/person interested has, is to submit objections to the
compulsory acquisition of his land under Section 5-A. No question,
such right and the consideration of objections filed by the land-
6 (2004) 8 SCC 14
8
owner/person interested in exercise of such right must be given the
importance it deserves. The question before us, is whether the
consideration of the appellants' objections to the acquisition of their
land by the Government suffers from any illegality or irrationality.
18. The appellants and their family members purchased the
subject land admeasuring 1.45 acres on January 27, 1981. The said
land was agricultural at the time of purchase and was depressed in
as much as it was low in level than the main road. The appellants
incurred expenditure in raising the level of the land and made
improvements; raised the building thereon and installed a saw mill
somewhere in 1986. In their objections filed on May 24, 1989 before
the RDO, the facts concerning the expenditure incurred by them for
converting the agricultural land into building site; the deprivation of
their sole means of livelihood and the availability of other lands were
stated. The objectors also stated that the workshop of Thanthai
Periyar Transport Corporation was originally put up in Anna
Kalayarangam land owned by the Municipality. Later, they had
purchased four acres of land comprised in T.S. Nos. 133 and 151 at
Lal Puram main road, and constructed a workshop and that workshop
was functioning. The Corporation, the objectors submitted, can
acquire any extent of land next to them to construct a workshop.
9
19. The RDO considered the above objections raised by the
appellants and in the proceedings drawn on September 14, 1989
overruled the same. The RDO held that when the requisitioning
authority approached TELC for making available their land, the TELC
refused to sell the said land and informed them that they required
their land for their religious purposes. The RDO, in this backdrop,
observed that TELC's land cannot be acquired for the purpose of
expansion of depot. As regards the availability of lands near Thanthai
Periyar Transport Corporation, the RDO observed that these lands
were one kilometre away from the Corporation's depot and, thus, the
land of the appellants alone was suitable for the expansion of depot.
The RDO, accordingly, forwarded its report to the Government.
20. On October 26, 1989, TELC issued a public notice in a
daily newspaper `Dina Malhar' for sale of its land referred to above.
The appellants sent the copy of the said notice to the Government.
However, the Government was not persuaded to accept the
landowners' objections and on consideration of the RDO's report
proceeded with the issuance and publication of declaration under
Section 6 of the Act.
21. Mr. Pallav Shishodia, learned senior counsel for the
appellants vehemently contended that the land belonging to the
10
TELC is suitable as that land is situated just behind the existing
depot; the existing depot has already access to the main road from
Chidambaram to Cuddalore and on acquisition of the land of TELC,
the acquired land too would have access to the main road through
the existing depot of the Corporation. He, thus, submitted that
suitability aspect has not at all been rationally considered by the
Government.
22. It is difficult to accept the contention of the learned senior
counsel for more than one reason. In the first place, in paragraph 5 of
the counter affidavit filed by the Government before the High Court,
inter alia, following averment was made:
".......The land acquired exists adjacent to the existing
depot and it has easy access to the main road from
Chidambaram to Cuddalore and it is found to be more
suitable in all aspects for the expansion of the
depot.........."
The above averment remains unrebutted and unchallenged by the
appellants as no rejoinder was filed.
23. Secondly, if the land proposed to be acquired and the
alternative land suggested by the owners/persons interested are
equally suitable for the purpose for which land is being acquired, the
satisfaction of the Government, if not actuated with ulterior motive,
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must get primacy. In the judicial review, it is not open to the court to
examine the aspect of suitability as a court of appeal and substitute
its opinion. In any case the present case is not a case where the
other lands suggested by the appellants have been found to be
equally suitable. The Government has given reasons as to why the
appellants' land has been found to be more suitable for expansion of
the depot. The appellants' land is adjacent to the existing depot of
the Corporation having easy access to the main road. In our view,
the manner in which the decision has been taken by the Government
regarding suitability of the appellants' land for expansion of the depot
of the Corporation is not vitiated by any error of law nor it is irrational
or founded on the extraneous reasons.
24. Third and more important, at the insistence of the
learned senior counsel for the appellants, we considered the site
plan referred to by him and from a perusal thereof no doubt is left that
the land of the appellants is more suitable than the land of TELC
situate behind the existing depot. TELC land has no direct access
from the Chidambaram to Cuddalore main road. It has access from a
different side road passing adjacent to the canal. The size of the
TELC's land is also awkward; it is a long piece of land of which width
narrows down from 175 feet to 56 feet west to east. On the other
12
hand, the appellants' land is adjacent on the southern side to the
existing depot and has access from the Chidambaram to Cuddalore
main road. Having regard to the purpose for which the land is sought
to be acquired, namely, expansion of existing depot, particularly, for a
workshop, the appellants' land is definitely more suitable. Pertinently,
in their objections, the appellants have not challenged the public
purpose for the acquisition of their land. In what we have indicated
above, it cannot be said that suitability aspect has not been
reasonably or rationally considered by the Government.
25. Then comes the second contention of Mr. Pallav
Shishodia. He relied upon the decision of this Court in the case of
Raja Ram4 and submitted that the erstwhile Corporation or the
successor Tamil Nadu State Transport Corporation (TNSTC) is a
`government company' for the purposes of the Act and, therefore,
compliance with the provisions of Part VII of the Act had to be made
in order to lawfully acquire any land for its purpose. In this regard, he
referred to the averment made in the reply to I.A. No. 3 of 2003 that
TNSTC was the beneficiary of the acquisition; it is they who have
remitted the extent of compensation quantified by the authorities
under the land acquisition.
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26. With regard to the above contention of Mr. Pallav
Shishodia, it is enough to say that it overlooks Section 3(cc) and
Section 3(e) of the Act, substituted by Act 68 of 1984. The definition
of `company' in Section 3(e) after substitution in 1984 is as follows:
"S.3(e).- the expression "company" means--
(i) a company as defined in section 3 of the
Companies Act, 1956 (1 of 1956), other than a
Government company referred to in clause (cc);
(ii) A society registered under the Societies
Registration Act, 1860 (21 of 1860), or under
any corresponding law for the time being in
force in a State, other than a society referred to
in clause (cc);
(iii) A co-operative society within the meaning of
any law relating to co-operative societies for the
time being in force in any State, other than a
co-operative society referred to in clause (cc)".
Section 3(cc) of the Act defines the expression "corporation owned or
controlled by the State" as follows :
"S.3(cc).- the expression "corporation owned or
controlled by the State" means any body corporate
established by or under a Central, Provincial or State Act,
and includes a Government company as defined in section
617 of the Companies Act, 1956 (1 of 1956), a society
registered under the Societies Registration Act, 1860 (21 of
1860), or under any corresponding law for the time being in
force in a State, being a society established or
administered by Government and a co-operative society
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within the meaning of any law relating to co-operative
societies for the time being in force in any State, being a
co-operative society in which not less than fifty-one per
centum of the paid-up share capital is held by the Central
Government, or by any State Government or Governments
or partly by the Central Government and partly by one or
more State Governments;"
27. That Corporation and the TNSTC fall within the definition
of Section 3(cc) is not in dispute. Both may not have been divested of
their character as a government company but sub-clause (i) of
Section 3(e) excludes a government company from the definition of
company. Part VII (Sections 38 to 44B) of the Act provides for
acquisition of land for companies. In view of the definition of the
`company' in Section 3(e) which excludes government company, the
Corporation or for that matter its successor TNSTC does not fall
within the definition of the `company' and, therefore, is not covered by
Part VII of the Act at all.
28. In Raja Ram4, the definition of `company' in Section 3 (e)
of the Act prior to its substitution fell for consideration. The definition
of `company' under consideration read as follows :
"the expression "company" means a company registered
under the Indian Companies Act, 1890 or under the
(English) Companies Acts, 1862 to 1882 or incorporated by
an Act of Parliament of the United Kingdom or by an Indian
law, or by Royal Charter or Letters Patent and includes a
society registered under the Societies Registration Act,
1860, an a registered society within the meaning of the
Cooperative Societies Act, 1912, or any other law relating
15
to cooperative societies for the time being in force in any
State."
29. It was in the context of the above definition that this Court
held in Raj Ram4 that the Food Corporation of India was not divested
of its character as a company within the meaning of definition of
clause (e) of Section 3 of the Act. As noticed above, the definition of
`company' has undergone complete change and the government
company has been expressly excluded from the expression
`company' for the purposes of the Act.
30. For the above reasons, it has to be held that Part VII of
the Act has no application to the present case as the acquisition of
land is not for a `company' as defined in Section 3(e).
31. Mr. Pallav Shishodia, learned senior counsel also urged
that the appellants are migrants from Gujarat. They have settled in
Chidambaram about thirty years back and the livelihood of the entire
family of the appellants which comprised of about 40 members is
dependant on the saw mill existing on the subject land. Having
regard to these facts, he would submit that we invoke our jurisdiction
under Article 142 of the Constitution and declare the acquisition of the
appellants' land bad in law to do complete justice. There is no doubt
that by compulsory acquisition of their land, the appellants have
16
been put to hardship. As a matter of fact, the RDO was alive to this
problem. In his report dated September 14, 1989, the RDO did
observe that the land owners have spent considerable money to raise
the level of the land for constructing compound wall and running saw
mill. He was, however, of the opinion that the appellants' land was
very suitable for the expansion of the depot and the suitable
compensation can be paid to the land-owners to enable them to
purchase an alternative land. The appellants, however, proceeded to
challenge the acquisition. The litigation has traversed upto this Court
and taken about 22 years. The public purpose has been stalled for
more than two decades. Being the Highest Court, an extraordinary
power has been conferred on this Court under Article 142 to pass any
decree, order or direction in the matter to do complete justice
between the parties. The power is plenary in nature and not inhibited
by constraints or limitations. However, the power under Article 142 is
not exercised routinely. It is rather exercised sparingly and very
rarely. In the name of justice to the appellants, under Article 142,
nothing should be done that would result in frustrating the
acquisition of land which has been completed long back by following
the procedure under the Act and after giving full opportunity to the
appellants under Section 5-A. The possession of the land has also
17
been taken as far back as on July 25, 2001. The appellants made
an application (I.A. No. 2 of 2002) for direction to the respondents not
to interfere with the functioning of the saw mill and permit them to use
the saw mill but this Court in its order dated May 8, 2002 only said
that the saw mill shall not be demolished till further orders. No
permission was granted to the appellants to use the saw mill. In other
words, for more than ten years the saw mill is closed after
possession was taken over from the appellants. In the circumstances,
this is not a case fit for exercise of power under Article 142 and
declare the acquisition of the appellants' land bad although the
acquisition proceedings have been completed in accordance with
law.
32. Lastly, the learned senior counsel invited our attention to
the application (I.A. No. 4) wherein the appellants offered for
amicable settlement by expressing their readiness and willingness to
give an area of land admeasuring 13250 square feet out of the total
land of 1.45 acres (i.e. 1 acre and 19445 sq. ft.) free of cost to the
Corporation. The offer is not acceptable to Mr. B. Balaji. He submitted
that such a small area is of no use for expansion of the existing
depot. We do not find any unreasonableness in the submission of
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the counsel that an area of 13250 square feet would not meet the
purpose for which the appellants' land has been acquired.
33. In view of the above, there is no merit in the appeal and it
is dismissed. I.A. No. 4 and other pending applications, if any, stand
disposed of. No costs.
...........................J
(R.M. LODHA)
......................................J.
(JAGDISH SINGH KHEHAR )
NEW DELHI
NOVEMBER 2, 2011.
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