C M XAVIER Vs. LAND ACQUISITION OFFICER

JUDGEMENT

(1.) IN this writ petition, the petitioners seek a declaration that S. 34 (1) and S. 34 (2) (a) of the Town Planning Act, 1108, are ultra vires the Constitution of INdia, and also the quashing of all proceedings for acquisition of 0. 1255 hectares of land in Survey No. 342/2 and 0. 7568 hectres of land in Survey No. 343/1 of Ernakulam village for Kaloor Town planning Scheme in pursuance of the notification published in Kerala Gazette dated 29 71964 under S. 8 of the Town Planning Act, and G. O. (MS)106/71/lad dated 21-7-1971 published in Kerala Gazette dated 24-8-1971 under S. 12 of the said Act.

(2.) THE brief facts necessary to be noted are as follows:-THE petitioner is the owner of 1. 43 acres of land in Survey No. 343/1 and 342/2 in Ernakulam village. Two years prior to the formation of the corporation of Cochin, the predecessor-in-interest of the Corporation of cochin, viz. , the Municipal Council, Cochin, passed a resolution in terms or s. 7 of the Town Planning Act, for the preparation of a scheme for the development of areas comprising Survey Nos. 343/1 and 342/2 etc. in Ernakulam village. This resolution passed by the Municipal Council on 14 71964 appeared in the Kerala Gazette dated 27-8-1964 as a publication under S. 8 of the Town planning Act. As contemplated under S. 9 of the Act, within the two years of the publication of the resolution aforementioned, the Municipal Council prepared the Scheme called the "kaloor Town Planning Scheme" and published the same in the gazette dated 5-7-1966. Between the date of publication of resolution as per S. 8 on the one hand, and the preparation of the draft scheme as per S. 9 on the other, the joint Town Planning Committee for Greater Cochin was formed, and steps coming within the purview of the Town Planning Act were undertaken by the Committee. After considering objections and suggestions called for in respect of the Scheme published as per S. 9 the Government by order dated 2171971 sanctioned the Scheme and the said" order was published in the Gazette dated 24 81971 in terms of S. 12 of the Act. Subsequent to events aforementioned, at the instance of the Town Planning Trust, the first respondent herein viz. , the Land Acquisition Officer, Special Tahsildar (L. A.), cochin Town Planning Trust, Ernakulam, served on the petitioners Ext. P1 notice as per S. 9 (3) of the Kerala Land Acquisition Act, 1960, hereinafter called the "acquisition Act", for taking possession of 31 cents of land in survey No. 342/2, included in the Scheme and proposed to be acquired. Another item of property, viz. , 1. 12 acres in Survey No. 343/1 belonging to the petitioners was also proposed to be acquired. THE petitioners claim compensation in respect of these lands. For the lands proposed to be acquired as per the Scheme in terms of S. 34 (2) (a) of the Town Planning Act, the land acquisition authority is to determine the compensation on the market value of the land at the date of publication of the notification under S. 8 or S. 10 as the case may be. In terms of this Section the Land Acquisition Authority, has to adopt the market value as on 28 71964, the date of publication of resolution as per S. 8 for determining compensation payable to land proposed to be acquired from the petitioners and several others. For the acquisition as per the provisions of the Town Planning Act, the acquiring authority is also not obliged to give the owner of land 15% solatium as in the Land Acquisition Act, by virtue of S. 34 (1) of the Act. THE determination of the compensation basing on market value as on the date of publication of resolution under S. 8 is very much detrimental to the rights of the petitioner to hold and possess property.

(3.) THE purpose of the acquisition whether made under the kerala Land Acquisition Act or the Town Planning Act is the same, namely for a public purpose. THE acquisition is made by the Government whether it is under the Kerala Land Acquisition Act or under the Town Planning Act. THE question is whether the classification of the owners from whom the acquisition is made could be discriminatory. It is a well settled principle that classification should be based on intelligible differentia and it must have a nexus to the object sought to be achieved. I do not find any reasonable basis for making the distinction between those whose properties are sought to be acquired under the kerala Land Acquisition Act on the one hand, and those whose properties proposed to be acquired under the Town Planning Act on the other, as the object in both the cases is acquisition of property for public purpose. It has been held by the Supreme Court while construing the provisions of the Nagpur improvement Trust Act that there should not be discrimination in regard to the applicability of the provisions under which the persons from whom properties are acquired and who claimed the compensation. In Para. 27 of the said judgment (AIR. 1973 S. C. 689) in Nagpur Improvement Trust and another v. Vithal Rao and others it is stated thus: "27. 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 would enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Art. 14. ",