PETITIONER:
LAND ACQUISITION OFFICER, CITY IMPROVEMENTTRUST BOARD
Vs.
RESPONDENT:
H. NARAYANAIAH ETC. ETC.
DATE OF JUDGMENT16/08/1976
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SINGH, JASWANT
CITATION:
1976 AIR 2403 1977 SCR (1) 178
1976 SCC (4) 9
ACT
Land acquisition--City of Bangalore Improvement Act,
1945, ss. 16 18 and 27--Notification under ss. 16. and 18
on different dates--Date for determining market value for
awarding compensation for acquisition of land.
Evidence Act (1 of 1872) s. 43 and Code of Civil Proce-
dure (ACt 5 of 1908) O. 41, 27--Admission of Judgments in
land acquisition proceedings as additional evidence.
HEADNOTE
The City of Bangalore Improvement Act, 1945, is con-
cerned with the improvement and future expansion of the
city, and for the appointment of a Board of Trustees with
special powers to carry out that purpose. As. an incident
of such improvement and expansion, it provides for acquisi-
tion of land also. .Section 16 of the Act provides for the
publication of a notice so that any representations which
objectors may make may be considered by the Board itself
under s.. 17. The object of the two sections is to provide
for the notification similar to that under 5. 4(1), Mysore
Land Acquisition. Act. 1894, and for hearing of objections
as under s. 5A, of that Act. Section 18 of the Bangalore
Act provides for the publication in the Gazette of the
declaretion that the land is acquired for a public; purpose.
Section 27 provides that acquisitions otherwise than by
agreement, shall be regulated by the provisions of the
Acquisition Act in so far as they are applicable and by
certain further provisions in the section. Section 27(1)
provides that upon the passing of a resolution by the Board
that an improvement scheme under s. 14 is necessary in
respect of any locality, it shall be lawful for any person,
authorised by the Board to do all such acts in respect of
the land as it would be lawful for an officer duly autho-
rised by the Government under s. 4(2) of the Acquisition
Act; and under s. 27(2) the publication Of a declaration
under s. 18 shall be deemed to be the publication of a
declaration under s. 6, Acquisition Act
In the present case, the notifications under s. 16 of
the Bangalore Act were issued in 1960 and the notifications
under s. 18 were published in 1967. On the question as to
which date was to be taken for the determination of the
market value for the purpose of awarding compensation, the
High Court held that the date of notification under s. 18 is
the relevant date. The High. Court held that decision of
Full Bench of the High Court in Venkatamma v. Special Land
Acquisition Officer (AIR 1972 Mysore 193) covered the ques-
tion: and it also relied on another decision of the Court,
determining compensation with respect of the acquisition of
certain other lands, as relevant evidence for the purpose of
determining compensation in the instant case. In appeal to.
this Court the respondent also supported the judgment of the
High Court on the ground that s. 23(1) of the Acquisition
Act which provides that the determination of the market
value should be as on the date of the publication of a
notification under s. 41(1), would not apply, because, (a)
no. principle o.r procedure governing award of compensation
is specified in the Bangalore Act, (b) the words "so far as
applicable", used in s. 27, are equivalent to "in so far as
they are specifically mentioned"; and s. 23(1) is not so
specifically mentioned; and, (c) since no. procedure or
principle is laid down for the= award of compensation in the
Bangalore Act, it would be equitable to hold that the market
value should be determined with reference to the late.r date
of. the notification under s 18 of the Act.
Allowing the appeal,
HELD: The matter should be remanded to the High Court for
determination of the market value of the land as on the date
of the notification under
179
s. 16 of the Bangalore Act, which corresponds to. the
notification under s. 4(1 ) of the Acquisition Act, after
affording opportunities to the parties whether the judgment
sought to be offered as additional evidence could be so
admitted shall be decided. [193 E-F]
(1)(a) The Full Bench of the High Court, while inter-
preting the City of Mysore Improvement Act, 1903, observed
that the Acquisition Act had been amended in 1927 so as to
make compensation payable as on the date of the notification
under s. 4(1) of that Act instead of the date of notifica-
tion under s. 6 according to the unamended law and but that,
in the Mysore Act, there was no corresponding amendment.
Therefore, the Mysore Act had to be construed with refer-
ence to the provisions of the Land Acquisition Act as it
stood in 1903. [182 F-G]
But, the Bangalore Act, even though its corresponds
substantially with the provisions of the Mysore Act of 1903,
should be interpreted with reference to the Acquisition Act
as it stood in 1945, because, the Bangalore Act was,
enacted in 1945. [182 H]
(b) The Full Bench also held that if there was long delay
between the two notifications, the acquisition itself would
be unconstitutional, and the.re.fore the date of notifica-
tion under s. 18 would be the relevant date. The delay
between the dates of notification under s. 16 and under s.
18 would not have any bearing on the question of the date on
which the market value is to, be determined, because, if a
particular acquisition becomes unconstitutional due to an
unreasonable mode. of exercising the statutory powers of
acquisition, the meaning of provisions, which are relevant
for determining the date of market value, could not be
affected. [183 F-H, 184 A]
(2) Under s. 43, Evidence Act, judgments other than
those falling under ss. 40 to 42, Evidence Act are irrele-
vant unless they fall under some other provisions of the
Evidence Act. In the present case, the earlier judgment of
the High Court cannot operate as resjudicata because it is
not between the same parties. Such judgments are also not
judgments in rem. However, in Khaja Fizuddin v. State of
Andhra Pradesh (CA. No. 176 dt.. 10-4-1963) this Court held
that such judgments would be relevant if they relate to
similarly situated properties and contain determinations of
value on dates fairly proximate to the relevant date in a
case. BUt, in the present case, the appellant was not given
any opportunity of showing that the earlier judgment related
to dissimilar land. The High Court also did not comply with
the provisions of 0.41 r. 27, C.P.C. before admitting the
earlier judgment as additional evidence. It had recorded no
’reasons to show that it had considered the requirements or’
the rule and why it found the admission of such evidence to
be necessary.
[191 G-H, 192 B-H 193 A-B]
Special Land Acquisition Officer, Bombay v. Lakhamsi
Ghelabhai, AIR 1960 Bom. 78, referred to.
(3)(a) Section 27 of the Bangalore Act enables the procedure
in the Acquisition Act to be utilised except tel the extent
to which the procedure in the bangalore Act may differ from
that in the Acquisition act. These difference s. 27(2) and
(2); are: (i) that the Board of Trustees could do the:
things provided for in s. 4.(2) of the Acquisition: Act
without a notification under s. 4(1); and (ii) the notifica-
tion under s. 18 of the Bangalore Act is equated to the one
under s. 6 of the Land Acquisition Act. Therefore, even
though s. 23 of the Acquisition Act is’ not specifically
mentioned in the Bangalore Act, the obvious purpose of the
opening words of s. 27 of the Bangalore Act, and the effect
of non-specification of a different principle in the Banga-
lore Act, is that the award of compensation, which is a
necessary part of any law providing for acquisition must be
governed by s. 23 of the Acquisition Act, which is the only
provision applicable; for determining the date of market
value.[189 D-G]
(b) The words "so far as they are applicable" cannot be
equated to in so far as they are specifically mentioned."
The words are used to exclude only those provisions of the
acquisition Act which become inapplicable, because
180
of the special procedure prescribe.d by the Bangalore Act.
They cannot be construed as excluding the application of
general provisions such as s. 23 of the Acquisition Act.
They amount to stating that what is not either expressly or
by necessary implication excluded must be applied. [190 H,
191 A-B]
(c) Equity supplements but does not supplant law. If,
in the face of the provision that the notification under s.
18, Bangalore Act is equated with a notification under s. 6
of the. Acquisition Act for the purpose of determining the
market value for awarding compensation, some transcendental
principle of’ equity is applied, then, it would be supplant-
ing the law laid down in s. 27 of the Bangalore Act read
with s. 23 of the Acquisition Act. It would also be absurd
to hold that a notification under s.18, Bangalore Act, could
be equated with a notification under s. 4(1) Acquisition
Act. Therefore, the relevant date would be the date of
notification under s. 16, because, the objects achieved by a
notification under s. 16, Bangalore Act, and one under s. 4,
Acquisition Act are identical. In the Full Bench decision
of the High Court, it was held. relying on s. 23 of the City
of Mysore Improvement Act, 1903 that s. 14 of that Act
should be equated to s. 4(1) of the Acquisition Act. But in
view of the provisions of r. 27 of the Bangalore Act, the
only result of equating a resolution under s. 14 of the
Bangalore Act with a notification under s. 4(1) of the
Acquisition Act would be to shift the date of ascertaining
of market value still further back which is not the conten-
tion of the respondents. [191 A, F]
OBITER: An additional compliance with s. 4(1) of the
Acquisition Act is not necessary in view of the special
procedure unders. 16 of the Bangalore Act: and, it would be
reasonable for the authorities to exercise the powers pro-
vided for by s. 27(1) of the Bangalore Act, corresponding to
those in s. 4(2) of the Acquisition Act, only after the
notification under s. 16 of the Bangalore Act. [185 B.C]
M. Manicklal v. The State of Mysore 1967 (2) M.L.J. 239
approved.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 644-650/74.
(Appeals by Special Leave from the Judgment and Order
dated 21-6-1975 of the Karnataka High Court in Misc. First
Appeal Nos. 77, 444-450/70 respectively).
K. Sen, V.M. Tarkunde, H.B. Datar and R.B. Datar for
the appellant.
S. Rangaraj, M. Qamaruddin, P.N. Purl, S.K. Mehta for
Mr. K.R. Naggrain, for respondent in CA. No. 644/74.
A.R. Somnath Iyer, S. Laxminarasu, for respondents in
CA. Nos. 645-650/74.
The Judgment of the Court was delivered by
BEG, J. Civil Appeals Nos. 644. to. 650 of 1974 are by
special leave against the judgment of a Division Bench of
the Karnataka High Court. The common and principal question
of law which arises is: Does the City of Bangalore Improve-
ment Act, 1945 (hereinafter referred to as ’the Act’ or ’the
Bangalore Act’), applying the provisions of the Land Acqui-
sition Act, 1894 (Central Act 1 of 1894). (hereinafter
referred to as ’the Acquisition Act’), to acquisitions of
land in Bangalore require the determination of market value,
for purposes of awarding compensation, on a date correspond-
ing to the date of notifi-
181
cation under Section 4 of the Acquisition Act or to the date
corresponding to that of the notification under Section 6 of
the Acquisition Act
The facts of the cases are not really material for the
determination of the question of law stated above. A few
facts relating to the lands acquired may, however, be men-
tioned. They have a bearing on a connected question dealt
with at the end of this judgment.
The seven appeals by special leave arise out of land
acquisition proceedings in which the 1st of the preliminary
notifications, under Section 16 of the Bangalore Act, took
place in the Mysore Gazette from 1960 onwards; and, the
subsequent notifications, under Section 18 of the Bangalore
Act, equated by Section 27(2) of the Bangalore Act with
notifications under Section 6 of the Acquisition Act, were
made in 1967. All the lands involved in these appeals are
situated in Birmamangala Village, Bangalore North Taluk, and
are .shown to have been acquired for the purposes. of a
scheme known as ’Bhinnamangala Lay Out II Stage or Indira
Nagar Extension’.
The Bangalore Act, as its preamble states, is really
concerned with the "improvement and future expansion of the
City of Bangalore and for the appointment of a Board of
Trustees with .special powers to carry out the aforesaid
purposes;". As an incident of this improvement and expansion
it provides for acquisition of land also.. It does not,
however, contain a separate code of its own for such acqui-
sitions. But, Section 27 of the Bangalore Act lays down:
"27. Provisions applicable by the acquisition
of land otherwise than by agreement.--The acquisi-
tion otherwise than by agreement of land within or
without the City under this Act shall be regulated
by the provisions, ,so. far as they are applicable,
of the Mysore Land Acquisition Act, 1894, and by
the following further provisions, namely :--
(1) Upon the passing of a resolution by the
Board that an improvement scheme under Section 14
is necessary in respect of any locality, it shall
be lawful for any person either generally or spe-
cially authorised by the Board in this behalf and
for his servants and workmen, to do all such acts
on or in respect of land in that locality as it
would be lawful for an officer duly authorised by
the Government to act under Section 4(2) of the
Mysore Land Acquisition Act, 1894 and for his
servants and workmen to do thereunder; and the
provision contained in Section 5 of the said Act
shall likewise be applicable in respect of damage
caused by any o.f the acts first mentioned.
(2) The publication of a declaration under
section 18 shall be deemed to be the publication of
a declaration under section 6 of the Mysore’, Land
Acquisition Act, 1894.
182
(3) For the purposes of section 50(2) of the
Mysore Land Acquisition Act, 1894 the Board shall
be deemed to be the local authority concerned.
(4) After the land vests in the Government
under section 16 of the Mysore Land Acquisition
Act, 1894 the Deputy Commissioner shall, upon
payment of the cost of the acquisition, and
upon the Board agreeing to pay any further costs
which may be incurred on account of the acquisi-
tion, transfer the land to the Board, and the land
shall thereupon vested in the Board".
The Mysore Land Acquisition Act of 1894 exactly
reproduces our Central Land Acquisition Act 1 of
1894. Therefore, the term ’Acquisition Act’ in
this judgment covers references to both the Mysore
Land Acquisition Act as well as the Central Land
Acquisition Act 1 of 1894. It was stated by Counsel
that the Mysore Land Acquisition Act was also
correspondingly amended whenever provisions of the
Central Land Acquisition Act 1 of 1894 were
altered .so that the two could be treated as iden-
tical for our purposes.
The judgment and orders of the Division Bench,
under appeal before us, purports to follow a Full
Bench decision of the Mysore High Court in Venka-
tamrna v. Special Land Acquisition Officer(1),
where it was held that the relevant date for deter-
mining the market value of the property to be
acquired is the date of notification under section
18 of the City of Mysore Improvement Act of 1903.
It appears that the provisions of the last men-
tioned Mysore Act of 1903 largely correspond with
the provisions of the Bangalore Act before us.
It has, however, to be remembered that the Act
which the Full Bench of the Mysore High Court was
interpreting was. enacted in 1903. It had, there-
fore, to be construed with reference to the provi-
sions of the Acquisition Act as it stood in 1903.
The Mysore Full Bench had observed that the Mysore
Land Acquisition Act had been amended by the Mysore
Act 1 of 1927 "so as to make compensation payable
as on the date of publication of the notification
under section 4(1) of that Act" instead of with
reference to the date of notification under
section 6 according to the unamended law. It said:
"It is significant to note that the Mysore Legis-
lature did not make any corresponding amendment
in the Act" (that is to say, the City of Mysore Act
of 1903). The Bangalore Act, even though it may
Correspond substantially with the provisions of the
Mysore Improvement Act 3 of 1903, was enacted in
1945. Hence, references in the Bangalore Act to
the Acquisition Act, which had been amended
considerably between 1903 and 1945, could not have
the same effect as similar references to the Acqui-
sition Act in the Mysore Act of 1903. We think
that the Division Bench of the Karnataka High
Court overlooked this vital distinction.
(1) A.I.R. 1972 Mysore 193.
183
The Full Bench of the Mysore High Court ex-
pressed the view that the contention that a notifi-
cation under Section 16 of the Mysore Act of 1903
could be equated with a notification under section
4 of the Acquisition Act was negatived by the
provisions of Section 23 sub. s. (1) of the
Mysore Act of 1903. It said (at p. 198):
"Section 23 (1) of the Act states that upon the passing
of a resolution by the Board that an improvement scheme
under Section 14 is necessary, it would be lawful for any
person authorised by the Board to enter upon the land
carry out the several acts on the land in question as provid
ed under section 4(2) of the Acquisition Act and the pro
visions of section 5 of the Acquisition Act would likewise
be applicable in respect of damage caused by any of the
acts of servants or workmen of the Board".
It, therefore, thought that what was sought to be achieved
by notification under section 4( 1 ) of the Acquisition Act
was done by a resolution under section 14 of the Mysore Act.
Taking the view that such a resolution could only be
anterior to the publication of the notification under sec-
tion 16, it equated the notification under section 16 of the
Mysore Act with a notification under section 6 of the
Acquisition Act. Thus, the Mysore. Full Bench found in
Section 23 (1) of the Mysore Act of 1903, a justification
for equating provisions of section 14 of that Act with,
those of section 4(1) of the Acquisition Act. But, we do
not find either in section 23 of the Bangalore Act, which
deals with an entirely different subject matter, or, any-
where, apart from section 27, additional provision (1) of
the Bangalore Act, a similar provision which could ;indicate
that proceedings under a section other than those under
section 16 of the Bangalore Act could possibly correspond
with those under section 4(1) of the Acquisition Act. And,
we think that to equate a resolution under section 14 of the
Act with a notification under section 4(1) of the Acquisi-
tion Act, on a similar reasoning, would be to miss the very
different purposes meant to be served by a resolution under
section 14 of the Bangalore Act and a notification under
section 4(1) of the Acquisition Act. Such reasoning appears
to us to be very far fetched.
Another reason given by the Full Bench of the Mysore
High Court, for holding that market value should be deter-
mined as on the date of notification under section 18 and
not that of notification under section 16 of the City of
Mysore Improvement Act (both these sections, correspond to
section 16 and 18 of the Bangalore Act) was that a delay of
20 years between the two notifications would make the
acquisition unconstitutional. We are unable to appreci-
ate the bearing of this consideration on a decision of the
statutory requirements as to the date on which market value
is to be determined for purposes of compensation. If a
particular acquisition becomes unconstitutional due to an
unreasonable mode of exercising the statutory powers of
acquisition, neither the provision which is so misused
nor the meaning. of other provisions, which are relevant
for determining the date of market value, is affected.
We are constrained to observe that some of the reasons
184
given by the Full Bench of the Mysore High Court as well as
the Division Benches of the Karnataka High Court have little
connection with the date on which the market value has to be
determined according to statutory provisions. A pure ques-
tion of interpretation of fairly clearly expressed legis-
lative intent which should not have been permitted to be
fogged by adverting to irrelevant matters.
It is true that the Bangalore Act has its own distinct
purposes and prescribed modes in which they are to be car-
ried out. Acquisition of land, as already observed, is a
mere incident in the carrying out of those purposes. Sec-
tion 26 of the Act gives, it the power to acquire land by
agreement. Section 27 of the Act reproduced above, enables
the procedure ’found in the Acquisition Act to be utilised
except to the extent to which the procedure for compulsory
acquisition in the Bangalore Act may differ from that con-
tained in the Acquisition Act. Section 27 of the Banga-
lore Act gives certain "further provisions" indicated
under four heads. Apparently. these are meant to dis-
place corresponding actions under the Acquisition Act. We
have to identify the corresponding provisions only for the
purposes of applying Section 23(1) of the Acquisition Act.
It is evident that the first of these additional provi-
sions enables the Board of Trustees, by virtue of section
14, to undertake what could have been done under the
Acquisition Act only after a notification under section 4(1
) of the Acquisition Act. In other words, the deviation
from the procedure laid down in the Acquisition Act is that,
whereas the Agents of the Govt. could not undertake any-
thing provided for by section 4(2) of the Acquisition Act
without a notification under section 4(1) of the Acquisition
Act, the Board of Trustees could do those very things with-
out any notification under section 4(1) of the Acquisition
Act. Even if we could equate the resolution under section
14 of the Bangalore Act with a notification under section
4(1) of the Acquisition Act, we could not dispense with the
requirements of section 23(1) of the Acquisition Act which
is the only provision applicable for determining the date
of the market value. The only result of equating a
resolution under section 14 with a notification under
section 4(1) of the Acquisition Act could be to shift the
date of as certainment of market value farther back. But,
that is not what the respondents contend for.
The second additional provision under section 27(2) seems
designed, by way of abundant caution, to clarify the mean-
ing of provisions of section 18 of the Act, Obviously, it
prevents any construction which could enable a notifica-
tion under section 18 of the Bangalore Act to be equated
with section 4(1) of the Act. To hold that a notification
under section 18 of the Bangalore Act could be equated with
section 4(1) of the Acquisition Act, in the face of this
clear provision, equating it with a notification under
section 6 of the Acquisition Act, is to countenance the
obvious absurdity that there is no difference between a
notification under section 4(1) and section 6 of the Acqui-
sition Act.
A possible line of argument, in view of the 1st addi-
tional provision in section 27 of the Bangalore Act, could
be that, since the
185
general procedure under the Acquisition Act applies, a
notification under section 4(1) of the Acquisition Act
itself should precede any action under section 14 of the Act
which is to be equated with section 4(2) of the Acquisi-
tion Act. But, that has not been the argument of any side
either in the Karnataka High Court or before us. Had that
been necessary and no notification under section 4(1) of the
Act had taken place, the validity of the whole acquisition
proceedings could have been challenged, but, the validity
of the Acquisition proceedings is not assailed before us at
all. Such a line reasoning would be also shut out by the
principle that the particular and the especially provided
procedure ;would exclude the more general if we hold, as we
have to having regard to Section 16 of the Act, that the
special procedure was meant to take the place of and to
serve the same object as the general. The argument that
an additional compliance with section 4(1) of-the Acquisi-
tion Act was necessary despite the special procedure in
section 16 of the Act, which fulfils the same function, is
also repelled by the correct view taken in M. Manicklal v.
the State of Mysore (1) by the Mysore High
court.
The real question before us is whether the market value
should be determined with reference to the date of notifica-
tion under section 16 of the Act. As we find that the
notification under section 18 has been actually equated, by
the second additional provision contained in section 27 of
the Bangalore Act, with a notification under section 6 of
the Acquisition Act, so that it could not be also equated
with any notification under section 4(1) of the Acquisition
Act and, as we also find that the provisions of section 16
of the Bangalore Act and section 4(1) of the Acquisition Act
show that the obvious intention behind and objects achieved
by a notification under section 16 of the Act and one under
section 4(1 ) of the Acquisition Act are identical, we think
that it is most reasonable to hold that it is not necessary
at all, in such cases, to comply with section 4(1) of the
Acquisition Act in addition to complying with section 16
of the Bangalore Act. The general provisions of section
4(1) of the Acquisition Act are displaced by the special
provisions of section 16 of the Act.
Here, we may set out the provisions of section 4 of the
Acquisition Act and section 16 of the Bangalore Act to indi-
cate the identity of purposes and the extent of similarity
of procedure.
Section A of the Acquisition Act provides:
"4. Publication of preliminary notification
and powers of officers there upon.--(1) Whenever it
appears to the appropriate Government or the Deputy
Commissioner that land in any locality is needed or
is likely to be needed for any public purpose, a
notification stating the purpose for which the land
is needed, or likely to be needed, and describing
the land by its survey number, if any, and also by
its boundaries and its approximate area; shall be
published in the official Gazette, and its
Deputy Commissioner
(1) 1967 (2) M.L.J.p.239
1414--1003SCI/76
186
shall cause public notice of the substance
of such notification to be given at convenient
places in the said locality. The Deputy Commis-
sioner may also cause a copy of such notification
to be served on the owner, or where the owner is
not the occupier, on the occupier of the land.
Explanation.--The expression ’convenient places’
includes, in the case of land situated in a vil-
lage, the office of the panchayat within whose
jurisdiction the land lies.
(1A) The notification under sub-section (1)
shall also specify the date, (such date not being
less than thirty days from the date of publication
of the notification) on or before which, and the
manner in which, objections to the proposed acqui-
sition may be made, under section 5A.
(2) On the publication of such notification it shah
be lawful for any Officer, either generally or
specially authorized by such Government or by the
Deputy Commissioner in this behalf, and for his
servants and workmento enter upon and survey and
take levels of the land; to dig or bore into the
sub-soil;
to do all other acts necessary to ascertain whether
the land is adapted for such purpose;
to set out the boundaries of the land proposed to
be taken and the intended line of work (if any)
proposed to be made thereon;
to mark such levels, boundaries and line by placing
marks and cutting trenches; and
where otherwise the survey cannot be completed and
the levels taken and the boundaries and line
marked, to cut down and clear away any part of any
standing crop, fence or jungle:
Provided that no person shall enter into any
building or upon any enclosed court or garden
attached to a dwelling house (unless with the con-
sent of .the occupier thereof) without previously
giving such occupier at least seven days notice in
writing of his intention to do so.
(3 ) Where the acquisition is for a company, an
officer of such company may be authorised by the
appropriate Government or the Deputy Commissioner
to exercise the powers conferred by sub-section
(2).
(4) The Officer authorised, under sub-section
(2)or sub-section (3) shall complete his investiga-
tion and submit his report to the Deputy Commis-
sioner within a period of three months (or within
such longer period not exceeding six months in all
as the Deputy Commissioner may allow), from the
date of the publication of the notification under
subsection (1). with his remarks to the appropriate
Government along-with his report under sub-section
(2) of section 5A".
187
Section 16 of the Bangalore Act enacts:
"16. Procedure on completion of
scheme.--(1) Upon the completion of an improvement
scheme, the Board shall draw up a notification
stating the fact of a scheme having been made and
the limits of the area comprised therein, and
naming a place where particulars of the scheme, a
map of the area comprised therein and a statement
specifying the land which it is proposed to acquire
and of the land in regard to which it is proposed
to recover a betterment fee may be seen at all
reasonable hours; and Shall-
(a) Copy of notification of scheme to be
communicated to May or of the Corporation-Communi-
cate a copy of such notification to the Mayor of
the Corporation who shall, with in thirty days from
the date of receipt thereof forward to the Board,
for transmission to the Government as hereinafter
provided, any representation which the Corporation
may think fit to make with regard to the scheme;
(b) Publication of notification.--Cause a copy
of the said notification to be publication during
three consecutive weeks in the Mysore Gazette and
posted up in some conspicuous part of its own
office, the Deputy Commissioner’s office, the
office of the Corporation and in such other places
as the Board may consider necessary.
(2) Service of notices on owners of property to
be acquired in executing the scheme.--During the
thirty days next following the day on which such
notification is published in the Mysore Gazette the
Board shall serve a notice on every person whose
name appears in the assessment list of the Corpora-
tion or the Municipality or local body concerned or
in the land revenue register as being primarily
liable to pay the property tax or land revenue
assessment on any building or land which it is
proposed to acquire in executing the scheme, or in
regard to which the Board proposes to recover a
betterment fee, stating that the Board proposes to
acquire such building or land or to recover such
bettermentfee for the purpose of carrying out an
improvement scheme and. requiring an answer within
thirty days from the date of service of the notice
stating whether the person so served,dissents or
not to such acquisition of the building or land or
to the recovery of such betterment fee, and if the
person dissents, the reasons for such dissent.
(3) Notice how to be served.--Such notice shall be
signed by, or by the order of, the Chairman and
shall be served-
(a) by delivery of the same personally to the
person required to be served or if such person is
absent or cannot be found, to his agent, or if no
agent can be found, then by leaving the same on the
land or building; or
(b) by leaving the same at the usual or last known
place of abode or business of such person as afore-
said; or
188
(c) by registered post addressed to the
usual or last known place of abode or business of
such person".
It will be set that Section 16 of the Bangalore Act
provides even more elaborately for the publication
of the initial notice which is given in section
4(1) of the Acquisition Act so that any representa-
tions which the objectors may have to make may be
considered by the Board itself under section 17 of
the Bangalore Act. Thus, the object of the
procedure provided by section 16 and section 17
seems to be to take the place of the notification
under section 4(1) and the hearing of objections
under section 5A of the Acquisition Act. Under the
Bangalore Act, it is the Board itself which gives
notices and considers objections to a scheme before
communicating the scheme to the Govt. for sanction.
It is true that the Board has not been specifically
given the power by the Bangalore Act to rescind the
scheme. The Bangalore Act only mentions the
Board’s power to modify the scheme, if it considers
that to be necessary. After that, the Act directs
the Board to send it to the Government for sanc-
tion. Of course, the Govt. could either sanction or
reject the scheme. And, in suitable cases, the
Board could perhaps revoke its own resolution.
But, we need not consider or decide that question
here. All we need observe here is that a corre-
sponding special procedure, which we find in the
provisions of section 16 of the Bangalore Act, need
not necessarily be identical with the general
procedure, serving the same object, which we find
in section 4(1) of the Acquisition Act. We are
concerned more here with the identity of objects
and functions of provisions rather than with that
of precise steps prescribed or words used in them.
The next stage is found in section 18 which lays
down:
"18. On receipt of sanction, declaration to
be published giving particulars of land to be
acquired-
(1) (a) On receipt of the sanction of the Govern-
ment,. the Chairman shall forward a declaration for
notification under the signature of a Secretary to
the Government, stating the fact of such sanction
and that the land proposed to be acquired by the
Board for the purposes of the scheme is required
for a public purpose.
(b) The declaration shall be published in
the Mysore Gazette and shall state the limits;
within which the land proposed to be acquired is
situate, the purpose for which it is needed, its
approximate area and the place where a plan of the
land may be inspected.
(c) And upon such publication Board to
proceed to execute the scheme.--The said declara-
tion shall be conclusive evidence that the Land is
needed for a public purpose, and the Board shall,
upon the publication of the said declaration,
proceed to execute the scheme.
(2) Board to have power to alter any part
of the Scheme.--(a) If at any time it appears to
the Board that an improvement can be made in any
part of the scheme, the Board may alter the scheme
for the purpose of making such
189
improvement, and shall, subject to the provisions
contained in the next two clauses of this sub-
section forthwith proceed to execute the scheme as
altered.
(b) If the estimated cost of executing the
scheme as altered exceeds, by a greater sum than
five per cent the estimated cost of executing the
scheme as sanctioned, the Board shall not,
without the previous sanction of the Govern-
ment, proceed to execute. the scheme as altered.
(c) If the scheme as altered involves the
acquisition otherwise than by agreement, of any
land other than that specified in the schedule
accompanying the scheme under section 17(2)(e), the
provisions of sections 16 and 17 an sub-sec-
tion (1) shall apply to the part of the scheme so
altered, in the same manner as if such altered part
were the scheme".
It will be seen that, but for the 1st additional provi-
sion, contained in section 27 of the Bangalore Act, perhaps
it could be urged that the powers contained in section
4(2) of the Acquisition Act and the fight to damages, con-
tained in section 5 of the Acquisition Act, do not apply at
all to acquisition under the Act. Hence, this additional
provision became necessary. We are not called upon to
determine here at what stage, powers under section 4(2) of
the Acquisition Act could or should reasonably be. exercised
in a case falling under the provisions of the Bangalore
Act. Nevertheless, we may mention that it would seem more
reasonable to exercise the powers provided for by section
27(1) of the Bangalore Act (i.e. powers in section 4(2) of
the Acquisition Act) only after a notification under section
16 of this Act.
An examination of the provisions of the Bangalore Act
and of acquisition proceedings under the Acquisition Act,
contemplated by it, would reveal that, whereas the procedure
from the notification under section 4 to the notification
under section 6 of the Acquisition Act gives place to the
procedure provided by sections 14 to 18 of the Bangalore
Act, the stage at which compensation is to be determined is
to be regulated entirely by the general provisions of sec-
tion 23 (1) of the Acquisition Act because there is no
special or separate provision in the Bangalore Act to regu-
late the compensation payable. It is true that section 23
is not specifically mentioned in the Bangalore Act. But,
the obvious purposes of the opening words of section 27 of
the Bangalore Act seems to us to be that award of compensa-
tion, which is a necessary part of any law providing for
acquisition, must be governed by section 23 of the Acquisi-
tion Act. The last mentioned section enacts:
"23. Matters to be considered in determining
compensation.--(1) In determining the. amount of
compensation to be awarded for land acquired under
this Act, the Court shah take into
consideration--
190
first, the market value, of the land at the date
of the publication of the ’notification under
section 4, subsection ( 1 );
secondly, the damage sustained by the person
interested, by reason of the taking of any standing
crops or trees which may be on the land at the
time of the Deputy Commissioner’s taking possession
thereof;
thirdly, the damage (if any), sustained by the
person interested, at the time of the Deputy Com-
missioner’s taking possession of the land, by
reason of severing such land from his other land;
fourthly, the damage (if any), sustained. by the
person interested, at the time of the Deputy Com-
missioner’s taking pOssession of the land, by
reason of the acquisition injuriously affecting
his other property. movable or immovable, in any
other manner, or his earnings;
fifthly, if, in consequence of the acquisition of
the land by the Deputy Commissioner, the person
interested is compelled to change hie residence. or
place of business, the reasonable expenses (if
any), incidental to such change; and
sixthly, the damage (if any), bona fide result-
ing from diminution of the profits of the land
between the time of the publication of the
declaration under section 6 and the time of the
Deputy Commissioner’s taking possession of the:
land.
(2) In addition to the market-value of the
land, as above provided, the Court shall in every
case award a sum of fifteen per centum on such
market value, in consideration of the compulsory
nature of the acquisition".
Non-specification of a different principle or procedure
in the Act, governing award of compensation under the Banga-
lore Act, far from indicating, as learned Judges of the High
Court erroneously opined, that section 23(1) of the Acquisi-
tion was not applicable here at all, was one of the strong-
est arguments for holding that it is covered by the general
provisions applied by section 27 of the Bangalore Act. An
acquisition proceeding without providing for award of com-
pensation on some principle is unthinkable. Such a situa-
tion would have invited an attack on the validity of the
acquisition itself. But, as we have already observed,
there is n‘ such challenge here.
There was some argument on the meaning of the words "so
far as they are applicable", used in section 27 of the
Bangalore Act. These words cannot be changed into: "in so
far as they are
191
specifically mentioned" with regard to the procedure in the
Acquisition Act. On the other hand, the obvious intention,
in using these words, was to exclude only those provisions
of the Acquisition Act which become inapplicable because of
any special procedure prescribed by the Bangalore Act
(e.g. section 16)corresponding with that found in the Acqui-
sition Act (e.g. section 4(1). These words bring in or
make applicable, so far as this is reasonably possible,
general provisions such as section 23(1) of the Acquisition
Act. They cannot be reasonably construed to exclude the
application of any general provisions of the Acquisition
Act. They amount to laying down the principle that what is
not either expressly, or, by. a necessary implication,,
excluded must be applied. It is surprising to find mis-
construction of what did not appear to us to be reasonably
open to more than one interpretation.
Learned Counsel for the respondents, rather desparately,
attempted to argue that, as there was no procedure or prin-
ciple laid down at all for award of compensation in the
Bangalore Act, we should invoke the aid of Equity and hold
that the market value should be determined with reference
to the date of notification under section 18 of the Act. We
do not think that such an argument could be advanced at all
in the face of the provisions of section 27(2) which clearly
equate a notification under section 18 of the Bangalore Act
with the notification under section 6 of the Acquisition
Act. We know the maxim that "equity follows the law". We
have not heard of the proposition that some transcendental
Equity should be so used as to defeat or amend the’ law as
it stands. Maitland said long ago that equity came to
supplement and not to supplant the law. We think that, if
we were to aquate a notification under section 18 with the
notification under section 6 of the Act for purposes of
determining the market value, which is to be awarded, we
would be doing nothing short-of supplanting at least ’the
law as found clearly laid own in section 27 of the Banga-
lore Act read with section 23 of the Acquisition Act. We
think that the Division Bench of’ the Karnataka High Court
had seriously misdirected itself in not giving effect to
obvious meanings of the plain words used in statutes under
consideration.
Another contention which found favour in the Karnataka
High Court was that a judgment filed by the respondents
claimants m Civil Appeals Nos. 644-650 of 1974, when they
appealed to the Karnataka High Court against the’ orders
passed by a Civil Judge of Bangalore, on a reference made
under the Acquisition Act, could be accepted as additional
evidence under Order 41, Rule 27 C.P.C. on the ground that
it. was relevant, evidence for the purpose of determining
compensation of lands which were the subject matter of
appeals before the High Court. The reasons given for admit-
ting, at the appellate stage, a judgment of the High Court,
which had not been filed before the Trial Court, were:
firstly, that it was not available when the proceedings
were pending in the Trial Court; and secondly, that lands
dealt with by the judgment were adjacent to the lands the
value of which needed determination, and that both sets of
192
lands were acquired at different stages of what is known as
the "layout scheme within the limits of Bhinnamangala vil-
lage’. The High Court overruled the objection that the
judgment admitted as additional evidence was not final
inasmuch as an appeal against it was pending in this Court.
We find that the High Court did not consider it, for some
reason, necessary to refer to the provisions of the Indian
Evidence Act which regulate the admissibility of all evi-
dence including judgments. There could be no question of
res judicata in such a case. The previous judgment was not
between the same parties. Furthermore, the appellant was
not given any opportunity of showing that the judgment
related to land which was at some distance from the lands
whose value was to be determined or that its site value was,
for some reason, higher. Even the time at which the value
of the other land was determined was not shown to be
identical. Such judgments are not judgments in rem. They
are judgments in personam. The general provision of law
governing admissibility of all judgments, whether they are
judgments in rem or judgments in personam operating as res
judicata, is section 43 of the Evidence Act which reads
as follows:
"43. Judgments, orders or decrees, other
than those mentioned in Sections 40, 41 and 42,
are irrelevant, unless the existence of such judg-
ment, order or decree, is a fact in issue, or is
relevant under some other provision of this Act".
It is apparent that section 43 enacts that judgments
other than those falling under sections 40 to. 42 are irrel-
evant unless they fall under some other provision of the
Evidence Act; and, even if they do fall under any such other
provision, all that is relevant, under section 43 of the
Evidence Act, is "the existence" of such judgment, order, or
decree provided it "is a fact in issue, or is relevant under
some other provision of this Act". An obvious instance of
such other provision is a judgment falling under section
13 of the Evidence Act. The illustration to section 13 of
the Evidence Act indicates the kind of facts on which the
existence of judgments may be relevant.
In Special Land Acquisition Officer, Bombay v. Lakhamsi
Ghelabhai,(1) Shelat J, held that judgments not inter
partes, relating to land acquired are not admissible merely
because the land dealt with n the judgment was situated near
the land of which the value is to be determined. It was
held there that such judgments would fall neither under
section 11 nor under section 13 of the Evidence Act. Ques-
tions relating to value of particular pieces of land depend
upon the evidence in the particular case in which those
facts are proved. They embody findings or opinions relating
to facts in issue and investigated in different cases. The
existence of a judgment would not prove he value of some
piece of land not dealt within at all in the judgment admit-
ted in evidence. Even slight differences in situation can,
(1) A.I.R. 1960 Bom. 78.
193
sometimes, cause considerable differences in value. We do
not think it necessary to take so restrictive a view of the
provisions of Sections 11 anti 13 of the Evidence Act as to
exclude such judgments altogether from evidence even when
good grounds are made out for their admission. In Khaja
Fizuddin v. State of Andhra Pradesh,(1) a bench of three
Judges of this Court held such judgments to be relevant if
they relate to similarly situated properties and contain
determinations of value on dates fairly proximate to the
relevant date in a case.
The Karnataka High Court had, however, not complied
with provisions of Order 41, Rule 27 of the C.P.C. which
require that an Appellate Courts should be satisfied that
the additional evidence is required to enable them either to
pronounce judgment or for any other substantial cause. It
had recorded no reasons to show that it had considered the
requirements of Rule 27, Order 41, of the C.P.C. we are of
opinion that, the High Court should have recorded its rea-
sons to show why it found the admission of such evidence to
be necessary for some substantial reason. And if it found
it necessary to admit it, an opportunity should have been
given to the appellant to rebut any inference arising from
its existence by leading other evidence.
The result is that we allow these appeals and set aside
the judgment and order of the Karnataka High Court and
direct it to decide the cases afresh on evidence on record,
so as to determine the market value of the land acquired on
the date of the notification under section 16 of the
Bangalore Act. It will also decide the question, after
affording parties opportunities to lead necessary evi-
dence, whether the judgment, sought to be offered as addi-
tional evidence, could be admitted.
The parties will bear their own costs.
V.P.S. Appeal
allowed.
(1) C.A. No. 176 of 1962, decided on 10-4-1963.
194