SPECIAL LAND ACQUISITION & REHABILITATION OFFICER, SAGAR versus M. S. SESHAGIRI RAO & ANR.

SPECIAL LAND ACQUISITION & REHARIUTATION OFFICER, SAGAR

M. S. SESHAGIRI RAO & ANR.

January 31, 1968

(1. C. SHAH AND V. RAMASWAM!, JJ.]

L.Jnd Acquisition Act (I of 1894).-<irant of lend on condition to surrer.der >n:ithoul compensation-Proceedings under Latid AcqUisition Ac1--Con1pensation, how payable.

The· Government of ~1ys0rc. granted plot of land to the respondent~ "'·ith the added condition that "in the event of the Government requirini the land for anv reason \vhatsoevcr. ·the grantee shall suncoder the land to the Government withbut claiming any compensation". The Govern-

ment acquired the land by adopting tho procedure prescribed by the Laed Acquisition Act but no compensation wa~ awarded to the grantees for the land. The Hi~h Court, in appeal, held that sinee the Government had failed to exercise the right which it had under the terms of tbe grant and had acted under the Land Acquisition Act, lhe grantees v.·erc entitled to compensation :is provided under the Act. In appeal, this Court. HELD : After ob!aining po~ession of the land in pursuance of statu tory authority under s. 17 of the Land Acqu;sition Act, the Govemme!lt could not seek ro exercise the option conferred by the terms of the grant. The grantees w~rc entitled to iom!JC'0.S3tion for the land of \\o·hich the OMlcrship v.·as vcs:red in them. Bu·. in :i''C'i'iing compensation payable to the ~antces, existence of the condition which severely restricte.d their right could not be ignored. [894 ll-C]

The Act is silc11: ~s to the acquisiti,)n of partial interestc; in Jana but it cannot be inferred therefrom that interest in ·Jand restricted becau!ie of the existence of rights of the State in the land cannot be acquired. When land is notified for acquisition for public purpose and the State has no interest therein. market value of the land mus! be detennined and aPPor-tioned among the persons entitkd to the land. Where the interest of the owner is clogged by the right of the Stale, the compensation payable is only th-o market value of that intere,t. subject to the clog. [895 B, CJ

The Coliector of Bon1bay v. .1\/u\ser,.,·anji Rattt;nji Mirtri &: Ors. { 1955} S.C.R. 131 I, followed.

Attomry-Grnera/ v. De Kayser"s Ro.val Hot<! Ltd., (1920) A.C. 508, referred to.

Government of Bombay v. Es11fa/i Salebliai. I.LR. 34 Bom. 618, approved.

Stat,· of Mtulras v. A.Y.S. /'arisuthn NnJnr. [1961] M.L.J. 285. dis-approved.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 335 of 1966.

Appeal by special leave from the judgment and order dated November 6. 1963 of the Mysore High Court in Misc. Appeal No. 293 of 1961.

Niren De, Solicitor-General, R. Gopa/akrishnan and S. P. Nayar, for the appellant.

Nau;;it Lal and T. S. Ramachandran, for the respondents.

The Judgment of the Court was delivered by

Shah, J. On April 15, 1952, the Government of Mysore granted an area of 11 acres and 3 8 gunthas of land situate in village Hebbyle to the respondents to this appeal. The grant was made in Form Appendix 'E' to the Mysore Land Revenue Rules with the added condition that "in the event of the Government requiring the land for any reason whatsoever, the grantee shall surrender the land to the Government without claiming any compensation". On January 11, 1958, the Government of Mysore published notification under s. 4 of the Land Acquisition Act that the land granted was likely to be needed for public purpose. By subsequent notification made under s. 17 ( 4) of the Land Acquisition Act, Government dispensed with the enquiry under s. 5-A of the Act and obtained possession of the land. In assess-ing compensation, the Land Acquisition Officer did not award any compensation for the land, and awarded Rs. 1,495 /-for improvement claimed to have been made to the land by the gran-tees. In reference under s. 18 of the Land Acquisition Act, the District Court agreed with the Land Acquisition Officer. In appeal, the High Court of Mysore set aside the award anJ re-manded the case to the District Court with direction to dete!1lline the compensation payable to the grantees 11nd to dispose of the case a~cording to law. T!e High Court observed that since the Government had failed to exercise the right which it had under the terms of the grant and had adopted the procedure prescribed by the Land Acquisition Act, compensation for acquisition under the Land Acquisition Act and the process by which ihe grantees were to be deprived of the land must be followed. Against the order passed by the High Court, this appeal is preferred with special leave.

Under s. 3 (a) "land" is defined as including benefits to arise out of land, and things attached to the earth or permanently fast-ened to anything attached to the earth. By s. 4 the appropriate Government is authorised to issue notification that land in any locality is needed or is likely to be needed for any public purpose, and thereafter to exercise certain powers in respect of the land for determining its suitability for the purpose notified. The Gov-ernment may under s. 17 in cases of urgency take possession of any waste or arable ·1and needed for the public purpose and the land thereupon vests absolutely in the Government free from all encumbrance~.

The Government of Mysore did not purport to exercise the power reserved by the terms of the grant, and adopted the proce-

dure prescribed by the Land Acquisition Act. The High Court observed, relying upon the decision of the House of Lords in A11orney-General v. De Kayser's RoyaJ°Hote/ Ltd.(') that the Government could not, after adopting the procedure prescribed by the Land Acquisition Act, seek to resort to the conditions of the grant and claim that no compensation for acquisition of the land was payable. It is true that after obtaining possessio!l of the land in pursuance of statutory authority under s. 17, the Govern-ment of Mysore could not seek to exercise the option conferred by the terms of the grant. But on that account in assessing com-peD~ation payable to the grantees, existence of the condition which severely restricted their right could not be ignored. The grantees were entitled to compensation for the land of which the ownership was vested in them. The measure of that compensation is the market value of the land at the date of the notification, and the measure of that market value is what willing purchaser may at the date of the notification under s. 4 pay for the right to the land subject to the option Yested in the Government.

The High Coun also placed reli'!nce upon the judgment of the Madras High Court in The State of Madras v. A. Y. S. Pdrisutha Nadar('). In that case the main question decided was whether it was open to claimant to compensation for land under acquisi-tion to assert title to the land notified for acquisition as against the State Government when the land had become vested in the Government by the operation of the Madras Estates (Abolition and Conversion into Ryotwari) Act 26 of 1948. On behalf of the State it was contended that once an estate is taken over by the State in exercise of its powers under the Estates Abolition Act, the entire land in the estate so taken over vested in the State in absolute ownership, and that no other claim of ownership in res-pect of any parcel of the land in the estate could be put forward by any other person as against the State Government without obtaining ryotwari pa/ta under the machinery of the Act. The High Court rejected that contention observing that the Govern-ment availing itself of the machinery under the Land Acquisition Act for compulsory acquisition and treating the subject-matter of ' the acquisition as not belonging to itself but to others, is under an obligation to pay compensation as provided in the Act, and that the Government was incompetent in the proceeding under the Land Acquisition. Act to put forward its own title to the property sought to be acquired so as to defeat the rights of persons entitled to the compensation. The propositions so broadly stated are, in our judgment, not accurate. The Act contemplates acquisition of land for public purpose. By acquisition of land is intended the pur-chase of such interest outstanding in others as clog the right of the Government to use the land for the public purpose. Where (I) [ 1920) A.C. 508. (2) [1961) 2 M.L.J. 285.

the land is owned by single p.!rson, the entire market value pay-able for deprivation of the ownership is payable to that person : if the interest is divided, for instance, where it be.longs to several persons, or where there is mortgage or lease outstanding on the land, or the land belongs to one and house thereon to another, or limited interests in the land are vested in different persons, apportionment of the compensation is contemplated. The Act is, it is true, silent as to the acquisition of partial interests in the land, but it cannot be inferred therefrom that interest in land restricted because of the existence . of rights of t)J.e State in the land cannot be acquired. When land is notified for acquisition for public purpose and the State has no interest therein, market value of the !arid must be determined and apportioned among the persons entitled to the land. Where the interest of th(: owner clogged by the right of the State, the compensation payable is only the market value of that interest, subject to the clog.

We ~re unable to agree with the High Court of Madras that when land 'is notified for acquisition, and in the land the State ha~ » an J.riierest, or the ownership of the land is subject to restrictive .covenant in favour of the State, the State is estopped from setting up its interest or right in the proceedings for acquisition. The State in proceeding for acquisition does not acquire, its own interest in the land, and the Collector offers and the Civil Court assesses compensation for acquisition of the interest of the private persons which gets extinguished by compulsory acquisition and · pays compensation equivalent to the market value of that interest. There is nothing In the Act which prevents the State from claiming in the proceeding for acquisitron of la,nd notified for acquisition that the interest proposed to be acquired is restrictive interest.

We agree with the observations made by Batchelor, 1., Government of Bombay v. Esufali Salebhai(') at p. 636:

"The procedure laid down in the Act is so laid down as being appropriate to the special case which is consi-dered in the Act, i.e., the case where the complete interests are owned· privately. But that special case is, as I understand it, singled out by the legislature as the norm or type with the intent that in other cases which only partially conform to the type the procedure should be followed in so far as it is appropriate, nor that such cases should be excluded from the Act because they do noi wholly conform to the type. In other words, Gov-ernment . . are not ·debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates 1111 interests as

r: I.LR. 34 Born. 618.

held outside Government, directs that the entire cor.;pen-sation based upon the market value of the whole land must be distributed among the. claimants. In such circumstances, as it appears to me, there is no insuper-able objection to adapting the procedure to the ease on the foot.ing that the outstanding interests, which are the only things to be acquired, are the only things to be paid for."

The principle of Esufa/i Salebhai'J case(') was it may be ob-served, approved by this Coun in The Collector of Bombay v. Nusserwanji Ratranji Mistri & Others([2]).

But the view expressed by the District Coun that the grantees

are not entitled to any compensation for the land cannot be sus-tained. The District Court was bound to determine the market value. at the date of the notification under s. 4 of the Land Acqui-sition Act, of the interest of the grantees in the land.

The order passed by he High Court is maintained subject to the modification that the market value of the interest of the gran· tees 11 the land (of the nature hereinbefore mentioned) at the date of th~ notification under s. 4 of the Land Acquisition Act shall be determined and paid to the grantees in addition to the compen-sat'T1 paid for the improvement in the land. There will be no order as to costs in this appeal.

Order of the High Court modified.

(J) ! L.R. 3~ Born. 613.

(1) (19~5) s. c. ,i_ ::11.