STATE OF MAHARASHTRA & ORS. v. RELIANCE INDUSTRIES LTD. & ORS.

The Judgment of the Court was delivered by D ARUN MISHRA, J. I. The State of Maharashtra has come up in appeal against the common judgment dated I 0.3.2006 passed by the High Court in two writ petitions being W.P. No.1956/1994 filed by Reliance Industries Ltd. & another and W.P. No.1384/1997 filed by Express Newspapers and another against State of Maharashtra and others. In both the cases, part of the building had been sought to be acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"). In both the cases the owners of building do not own the land. In Express Newspapers the land belongs to the Government and in the case of Reliance Industries, the ownership of the land is with the Port Trust. The question which arises for consideration is whether, under the Act, acquisition of part of the building can be made without acquiring land underneath to such building. The High Court has quashed the acquisition, sans the land, as unsustainable.

2Copy pinpoint2. In W.P. No.1956of1994, the premises admeasuring 1478 sq. mts. on the third floor of the building i.e. "Reliance Centre" at 19, G Walchand Hirachand Marg, Ballard Estate, Bombay is the premises. The Controller of Accommodation had requisitioned the said accommodation under the provisions of section 6(4)(a) of the Bombay Land Requisition Act, 1948 (hereinafter referred to as "the Requisition Act"). It had been allotted for use and occupation by Anti Corruption H Bureau, Prohibition and Intelligence Bureau of the Government of

STATE OF MAHARASHTRA & ORS. v. RELIANCE 339 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

Maharashtra and was also partly occupied by Deputy Controller of A Rationing, Region-A, Department of Civil Supplies.

3Copy pinpoint3. W.P. No.1679 of 1991 was filed by Reliance Industries Ltd. challenging the requisition order dated 23.1.1970 in view of the judgment of this Court, disapproving withholding of requisitioned property for an unreasonable period of time. B

4Copy pinpoint4. The State Government issued a notification under section 4 of the Act to acquire the entire third floor premises admeasuring 167 .SO sq. mtrs. in the building. Notice was issued for the purpose of an inquiry under section SA on 28.12.1992 that was served on 02.01.1993. ln pending writ petition an amendment application was filed to incorporate the c challenge to the land acquisition proceedings. However, on objections being filed, the writ petition was disposed of with liberty to challenge the acquisition proceedings independently. Declaration under section 6 was issued on 23.6.1994. Notice under section 9 of the Act was issued on 29.7.1994 which was served on 2.8.1994. Thereafter, Reliance Industries Ltd. filed fresh writ application out of which the present appeal arises. D

5Copy pinpoint5. In W.P. No.1384 of 1997, the respondent - Express Newspapers - is the lessee of the land owned by the Government. The building is known as "Express Building" at Plot No.18, Block No.I; Back Bay Reclamation, Bombay. The Governor of Bombay had granted the registered lease on 13.3.1956. The second floor comprised in 4500 sq.ft. - E was sought to be acquired.

6Copy pinpoint6. Earlier vide order dated 25.9.1968 the said floor of Express Newspapers building was requisitioned for use of State Government and was allotted to the 5t11 appellant, i.e., Controller of Rationing, Food & Civil Supplies Department. Since the requisitioning continued for an unduly F long period, Express Newspapers Ltd. filed W.P. No.226911992. During the pendency of the same, the State Government initiated the acquisition proceedings by issuing a notification under section 4 with respect to the second-floor premises admeasuring about 325.15 sq.mtrs. needed for Food & Civil Supplies Department to accommodate the office of the G ControllerofRationing, Food & Civil Supplies. Notice under section 9 of the Act was issued. Thereafter, declaration issued under section 6 of the Act was withdrawn. Subsequently, a fresh notification under section 4 was issued on 28. 7. 1996 in relation to the vacant premises of second floor admeasuring 345.18 sq.mtrs. Objections were filed, an inquiry under H

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A section SA of the Act was held, followed by a declaration under section 6 which came to be issued on 17.4.1997 and notice under section 9 on 23 .7 .1997. Thereupon, writ petition had been preferred out of which the appeal arises.

7Copy pinpoint7. The High Court has held that without acquisition of land, part of the building could not be acquired. The definition of'building' in section 3(a) of the Act is an inclusive one. The land would include all benefits arising out ofland for the purpose of acquisition as well as things attached to the earth or permanently fastened to anything attached to the earth. In other words, the High Court has held all the structures or the trees or any material attached or fastened to the land to be acquired, would also be the subject matter of acquisition along with such land. But under the provisions of the Act without the land to which the things are attached or permanently fastened, such things by themselves and singularly cannot be the subject matter of acquisition. Though the term 'include' would suggest the definition of "Land" to be exhaustive and extensive, an interpretation of the term has to be in the context of and cannot be in isolation. The acquisition under the Act cannot be merely of the benefits out of or the things attached or permanently fastened to the land without acquiring the land itself. The High Court has further held that a part of the house or building which can be acquired in the absence of objection in that regard by the owner, would necessarily include the land underneath or appurtenant to such part of the house or building. Merely because there is dual ownership, it would not mean that acquisition proceedings under the said Act could be oflimited interest in the land.

8Copy pinpoint8. Against the judgment and order passed by the High Court, the appeals have been preferred by the State of Maharashtra, this Court F has directed maintenance of status quo. Application for subsequent events has also been filed indicating that efforts have been made to get the pre·mises vacated and to withdraw the acquisition proceedings. However, acquisition has not been withdrawn so far. In our opinion, it is of no consequence, as acquisition cannot be withdrawn.

9Copy pinpoint9. Learned counsel appearing for the appellants has submitted that under the Act a part of the building can be acquired without acquiring the land on which the building has been built. The true pwport and meaning of the expression 'land' has not been correctly appreciated by the High Court. It was submitted that part of the building without the land on which the building is built, is covered by the expression 'land' as defined

STATE OF MAHARASHTRA & ORS. v. RELIANCE 341 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

under the Act. Learned counsel has further submitted that the definition is inclusive definition. It has not been correctly interpreted by the High Court. Same is of wide amplitude. When the Government or the Port Trust owns the land and only a part of the building was required, its acquisition could have been made without acquisition of the land. It was not necessary for the Government to acquire its own land. Section 49 of the Act contemplates the acquisition of not only of a house or building but also a part of house or building. The concept of dual ownership is well settled. There is no reason why building itself or part thereof belonging to an independent owner cannot be acquired. There arc very many things that can be acquired under the Act without acquiring the land such as fisheries etc. Government has to acquire what it is capable c of acquiring and not something more that was required to be acquired. Under section 16 of the Act, property acquired vests with the Government free from all encumbrances. The term 'encumbrance' means a claim, lien or liability attached to the property. The persons who are holders of such encumbrance arc entitled to compensation. D

10Copy pinpoint10. It was submitted on behalf of the respondents that definition of the 'Land' under section 3(a) of the Act, is inclusive but it does not define the land to mean "benefits to arise out ofland, and things attached to the earth or permanently fastened to anything attached to the earth". It was vehemently urged that the inclusive definition couldn '!'take away the ordinary meaning of 'land'. The definition only provides for what it additionally includes. It was further submitted that the object of the Land Acquisition Act provides the context in which expression 'land' is to be interpreted. The Act contemplates the acquisition of the land in the ordinary sense of the term and a mere building without the underlying land cannot be acquired under the Act. It was· further submitted that section 49 of the Act does not empower the acquisition of any building or a part thereof de hors the underlying land. For that reliance has been placed upon the second proviso to section 49(1). It was also urged by learned senior counsel appearing for the respondents that acquisition of a building or a part thereof without acquiring the underlying land would be an overreach of State's power of eminent domain. The State has an obligation to compensate the owner for his land. This restriction on State's power is inherent in the doctrine of eminent domain. It was also contended that owner of the land is deprived of his ownership rights over his land when the State purports to acquire only a building or part thereof, standing on his land without acquiring the underlying land. The owner has the H

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A right to possess the thing which he owns. He also has a right to use or enjoy the thing owned. Other's right of ownership also coincides if the building is compulsorily acquired. No person would want to buy the underlying land from the owner. Thus, the owner of the land would be deprived of his right to obtain a fair income or value of the land upon B alienations. Thus, upon acquisition of a building, State also deprives the landowner of the right in his land. By not acquiring the land the State would be avoiding its obligation to compensate the owner for its land. ... Interpretation of section 3(a) of the Act has to be consistent with the ·· 'limitation on the State's power of eminent domain interpreted in Article 300A of the Constitution oflndia. c 11. Following questions arise for our consideration: I. Meaning of land under section 3(a) of the Act. II. Interpretation of term 'includes'. III. Object and scheme of Act. D IV. Whether State to acquire its own land underneath building or other interest? V. Acquisition of part of building without land under section 49 of the Act. E VI. Violation ofArticle 300A by acquisition in part. VII. Whether valuation method of building mandates acquiring ofland? !: In Re : Meaning of land under section 3(a) of the Act

12Copy pinpoint12. It is necessary to consider definition of'land'. Section 3(a) of the Act defines the expression 'land' which is extracted hereunder: "3. Definitions. - In this Act, unless there is something repugnant in the subject or context, - (a) the expression "land" includes benefits to arise out ofland, G and things attached to the earth or permanently fastened to anything attached to the earth" The definition of"land" is inclusive and it includes benefits arising out of land, and things attached to the earth or permanently fastened to anything attached to the earth. H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 343 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

13Copy pinpoint13. When we consider the scheme of the Act, section 4 provides that no person shall enter into any building or upon any enc.dosed court or garden attached to a dwelling house without giving notice in writing for the purpose of preliminary investigation when the land is required for public purpose.

14Copy pinpoint14. Section 49 of the Act deals with the acquisition of part of house or building. The provision is extracted hereunder: "49. Acquisition of part of house' or building. - (1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory c or building shall be so acquired: Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section, the Collector shall refer the determination of such question to the Court and shall not be take posses~ion of such . land until after the question has been determined. In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken, is reasonably require for the full and unimpaired use of the house, manufactory or building. (2) If, in the case of any claim under section 23, sub-section (1 ), thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the [appropriate Government] is of opinion that the claim is unreasonable or excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which .the land first sought to be acquired forms a part. (3) In the case lasthereinbefore provided for, no fresh declaration or other proceedings under sections 6 to I0, both inclusive, shall be necessary; but the Collector shall without delay furnish a copy of the order of the [appropriate Government] to the person interested, and shall thereafter proceed to make his award under section 11." ,

H

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15Copy pinpoint15. The provision contained in section 49 makes it clear that there can be acquisition of part of house or building but if the owner thereof desires that whole of his house or manufact01y or building shall be so acquired, the provisions can not be used for the purpose of acquiring a part only of any house, manufactory or other building and when a part is proposed to be acquired, owner has right to object that the whole building or house should be acquired and not the part, and the owner at any time before the Collector has made his award under section 11, by notice in writing, withdraw or modify, his expressed desire that the whole of such house, manufactory or building shall b'e so acquired. Second proviso makes it clear that if any question arises whether any land proposed to be taken under the Act does or does not form part ofa house, manufactory or building within the meaning of section 49(1 ), the Collector shall refer the determination of such question to the court and shall not take possession of it until after the question has been determined, and the court while deciding such a question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufact01y or building.

16Copy pinpoint16. In our opinion, provisions of section 49 of the Act make it clear besides the inclusive definition under section 3(a), that there can be acquisition of part of building or house and owner has the option to express his desire that the whole of it should be acquired and not the part, as the case may be. The court has the power to decide on a question being referred under the second proviso, whether land proposed to be taken forms part of the house, manufactory or building. The court has to take into consideration the question whether land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building. If the court holds otherwise, obviously the possession of the land shall not be taken. There can be acquisition of the house or building or manufactory under the provisions of section 49( I) or acquisition of part. It is not a case where any of the owners of the building has desired that whole of building be acquired. In case such intention would have been expressed, it would have been incumbent to acquire the whole of the building.

17Copy pinpoint17. In Municipal Corporation of Greater Bombay & Ors. v. Indian Oil Corporation Ltd. (1991) Supp. 2 SCC 18 this court had considered the definition of"land'' which is an inclusive definition and has observed that its accompaniments are land which is being built upon H

STATE OF MAHARASHTRA & ORS. v. RELIANCE / 345 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.] I

or is built upon or covered with water; benefits to arise out of land; things attached to the earth, This Comi has held thus: "26 The question then is whether it is a land? Indisputably the definition of 'land' also is of an inclusive definition. Its accompaniments arc land which is being built upon or is built upon or covered with water; benefits to arise out ofland: things attached to the eaiih or pem1anently fastened to anything attached to the earth and rights created by legislative enactment over any street. The question is whether the tank is attached to the ea1ih? In Stroud's Judicial Dictionary (5th edn. Vol. 1) relied on by the learned counsel for the appellant, the word 'attached' has been defined at page 217 thus: C "This word docs not always mean physically fastened; it may also mean, superineumbent upon. Thus, in citing the judgment of Cockburn, C.J., Laing v. Bishopswearmouth, that whatever is 'attached' to premises has to be estimated for the purpose of ascertaining its rating value." D

18Copy pinpoint18. The meaning of"land" has also been considered by this Court in P Rami Reddy & Ors. v. State of'Andhra Pradesh & Ors. ( 1988) 3 SCC 433. This Court has discussed the question that arose in the context of the meaning of the expression 'land' in paragraph 5(2)(a) of the Fifth Schedule to the Constitution and section 3( 1) of the Schedule to A.P. E Scheduled Area Land Transfer Regulation, 1959. This Comi has laid down thus: "21 Another argument which did not succeed in the High Court has been hopefully persisted with in this Court. The expression "Land" has been used in its restricted sense in para 5(2)(a) of the Fifth Schedule and therefore the impugned provisions prohibiting the transfer oflands along with structures thereon by employing the expression "immovable property" is not in accordance with law. Such is the argument. This argument is devoid of merit for two reasons: Firstly, there is no reason to believe that "land" has not been employed in its legal sense. The expression "land" in its legal sense is a comprehensive expression which is wide enough to include structures,-if any, raised thereon. While this proposition hardly needs to be buttressed, support can be sought from the following sources: H

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A The Dictionary of English Law [ 1959 edn., Vol. 2, p.l 053 by Earl Jowitt] LAND, in its restrained sense, means soil, but in its legal acceptation it is a generic term, comprehending every species of ground, soil or earth, whatsoever, as meadows, pastures, woods, B moors, waters, marshes, furze, and heath; it includes also houses, mills, castles, and other buildings; for with the conveyance of the land, the structures upon it pass also. And besides an indefinite extent upwards, it extends downwards to the globe's centre, hence the maxim, Cujus est so/um ejus est usque ad cae!um et ad inf'eros; or, more curtly expressed, Cujus est so/um ejus est c a/tum (Co. Litt. 4-a). Words and Phrases Judicially Defined (By Roland Burrows- Vol. III, 1944 edn., p.206) The word "land" would be variously understood by different D persons. To a farmer the word "land" would not mean his farm buildings; to a lawyer the word would include everything that was upon the land fixed immovable upon it. Smith v. Richmond per Lord Halsbury, L.C., at p. 448. The Law Lexicon E The word "land" is a comprehensive term, including standing trees, buildings, fences, stones, and waters, as well as the earth we stand on. Standing trees must be regarded as part and parcel of the land in which they are rooted and from which they draw their support.

F 22. Secondly, to interpret the expression "land" in its narrow sense is to render the benevolent provisions impotent and ineffective. In that event the prohibition can be easily circumvented by just raising a farmhouse or a structure on the land. The impugned provisions were inserted by the Amending Regulation precisely to plug such loopholes and make the law G really effective. The High Court was perfectly justified in repelling this meritless plea. It is therefore not possible to accede to this submission." (Emphasis supplied) H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 347 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

19Copy pinpoint19. A Division Bench of the High Comi of Calcutta considered in A Mrina/ini Roy & Ors. v. State of West Bengal & Ors. 1975 (1) CLJ 57 question whether the acquisition of fishery for the purpose ofreclamation of Southern Salt Lake area was valid or not. It upheld acquisition. The Court held that fishery is included in the definition of the land. Aforesaid matter travelled to this Court in Mrinalini Roy Ratna Prova Monda! B & Ors. v. State of West Bengal & Ors. (1997) 9 SCC 113, this court considered the expression 'land' under the Act thus; "2. It is not necessary to narrate all the facts in these cases. Sut1ice it to state that notification under Section 4(1) of the Land Acquisition Act; 1894 (for short "the Act") was published on 14- 5-1956 for reclamation of the fisheries in the lands comprising C caqastral plots enumerated in the notification, of an extent admeasuring more or less 8760.53 acres. Declaration under Section 6 was published on 5-1-1971 declaring that the land for the reclamation of the Southern Salt Lake area was published. We arc concerned presently to an extent of 1495.93 acres only. D It was contended in the High Court and also repeated by Dr S. Ghosh, learned Senior Counsel, that the "land", as defined under Section 3(a) does not include fisheries; that is made explicit by the West Bengal Amendment Act, 1981 bringing fishery within the ambit of the word "land" .~t would indicate thatthe authorities have llllderstood that the Act does not apply to acquisition of the E fisheries rights and, therefore, the acquisition was without authority of law. In support thereof, Dr Ghosh placed reliance on the judgment of the Division Bench of the Calcutta High Court in Pasupati Roy v: State of WB. [AIR 1974 Cal 99] and State of WB. v. Suburban Agriculture Dairy & Fisheries (P) Ltd. F [1993 Supp (4) SCC 674] (SCC paras 6, 13, 14 and 16) and in State of WB. v. Shebaits of lswar Sri Saradia Thakurani [AIR 197 l SC 2097] (AIR at p. 2098, para 3). We find it difficult to give acceptance to the contentions of the learned counsel. The expression "land" includes benefits to arise out of land and, things attached to the earth or permanently fastened to anything G attached to the earth. Tank fisheries cannot survive independent of the tank and there cannot be a tank without the land. Therefore, the expression "land" is required to be understood in that perspective when the tank fisheries are sought to be acquired. H

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A Tank fisheries thereby would be a benefit to arise out of the land. Thereby the word "land" should be understood to have been covered by the elongated definition since it defines with inclusiveness that the tank fisheries is a benefit to arise out of land.

B 4. It is true that a memo was filed on behalf of the Fisheries Department and it was reiterated in the counter-affidavit filed in the High Court that the land acquired would be used to rehabilitate some of the displaced fishermen to eke out the livelihood in reclamation tank fisheries. The above statement is not inconsistent with the public purpose which became conclusive c under Section 6(3 ). As seen, while reclaiming the tank fisheries for the public purpose, some of the displaced fishermen on the other lakes are sought to be rehabilitated in the Jake in question by enabling them to catch the fish to earn livelihood. It would, therefore, be not inconsistent with the declaration conclusiveness of which has been attached by operation of sub-section (3) of Section 6 which is also consistent with Section l l 4(h) of the Evidence Act, 1872. It is true that prior to the Amendment Act, 1981 tank fisheries were not expressly brought within the definition of land. In 1981, with a view to avoid any further litigation on the interpretation in that behalf, the legislature expressly brought within the ambit of the land tank fisheries or fisheries. That docs not mean that it would not be capable of interpretation to bring within the ambit ofa benefit to arise out of the land. The Division Bench judgments of the Calcutta High Court relied upon by Dr Ghosh have not correctly laid down the law. In Suburban F Agriculture Dairy (supra) and Saradia Thakurani (supra) cases that question did not squarely arise. That was a case under the West Bengal Estates Acquisition Act, 1954 ( l of 1954). The definition of "land" expressly mentions that the tank fisheries are included within the definition of "estate" but vis-a-vis the rights attached therein, option has been given to the intermediary within a specified time for its retention. Therefore, the intermediary, if he had exercised the option after the notification abolishing the estates concerned within the specified time, then the tank fisheries stand excluded from vesting. That principle has no application to the facts in this case. Accordingly, we hold that the tank fisheries are the land and the acquisition was for a

STATE OF MAHARASHTRA & ORS. v. RELIANCE 349 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

public purpose. We do not find any illegality warranting interference with the Division Bench judgment." (Emphasis supplied) The definition ofland is of wide connotation. It cannot be construed in narrow sense to render provisions of the Act otiose or impracticable. B II. In Re : Interpretation of term 'includes'

20Copy pinpoint20. The definitionofland in section 3(a) is inclusive. What meaning is to be given to term 'include' for that reliance has been placed on C.I.T, Andhra Pradesh v. Mis. Taj Mahal Hotel, Secunderabad (1971) 3 SCC 550. The purport of interpretation of the expression C "includes" has to be in the context of the Act. This Court has held thus: "6. Now it is well settled that where the definition of a word has not been given, it must be construed in its popular sense if it is a word of every day use. Popular sense means "that sense which people conversant with the subject-matter with which the statute is dealing, would attribute to it". In the present case, Section I0(5) enlarges the definition of the word "plant" by including in it the words which have already been mentioned before. The very · fact that even books have been included shows that the meaning intended to be given to "plant" is wide. The word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. When it is so used, those words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include. The word F "include" is also suspectible of other constructions which it is unnecessary to go into."

21Copy pinpoint21. The purport of inclusive definition has also been considered by this Court in S.K. Gupta & Am: v. K.P. Jain & Anr. (1979) 3 SCC 54, thus; G . "24. The noticeable feature of this definition is that it is an inclusive definition and, where in a definition clause, the word "include" is used, it is so done in order to enlarge the meaning of the words or phi·ases occurring in the body of the statute and when it is so used, these words or phrases must be construed as H

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A comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include (see Dilworth ic Commissioner ofStamps (1899)AC 99). Where in a definition section of a statute a word is defined to mean a certain thing, wherever that word is used in that statute, it shall mean what is B stated in the definitions unless the context otherwise requires. But where the definition is an inclusive definition, the word not only bears its ordinary, popular and natural sense whenever that would be applicable but it also bears its extended statutory meaning. At any rate, such expansive definition should be so c construed as not cutting down the enacting provisions of an Act unless the phrase is absolutely clear in having opposite effect (see Jobbins E Middlesex County Council, (1948) 2 All ER 610). Where the definition of an expression in a definition clause is preceded by the words "unless the context otheiwise requires", normally the definition given in the section should be applied and given effect to but this normal rule may, however, be departed from ifthere be something in the context to show that the definition should not be applied (see Khanna, J., in Indira Nehru Gandhi v. Rqj Narain, (1975) Supp SCC 1). It would thus appear that ordinarily one has to adhere to the definition and if it is an expansive definition the same should be adhered to. The frame of any definition more often than not .is capable of being made flexible but the precision and certainty in law requires that it should not be made loose and kept tight as far as possible (see Ka/ya Singh v. Genda Lal, (1976) 1 SCC 304)."

22Copy pinpoint22. This Court has considered the purport of inclusive definition in P. Kasilingam & Ors. v. P.S.G College of Technology & Ors. ( 1995) Supp. 2 SCC 348 thus; "19. We will first deal with the contention urged by Shri Rao based on the provisions of the Act and the Rules. It is no doubt G true that in view of clause (3) of Section 1 the Act applies to all private colleges. The expression 'college' is, however, not defined in the Act. The expression "private college" is defined in clause (8) of Section 2 which can, in the absence of any indication of a contrary intention, cover all colleges including professional and technical colleges. An indication about such an intention is, H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 351 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

however, given in the Rules wherein the e;x:pression, 'college' A has been defined in Rule 2(b) to mean and include Arts and Science College, Teachers'Training College, Physical Education College, Oriental College, School oflnstitute of Social Work and Music College. While enumerating the various types of colleges in Rule 2(b) the rule-making authority has deliberately refrained from including professionaland technical colleges in the said definition. It has been urged that in Rule 2(b) the expression "means and includes" has been used which indicates that the definition is inclusive in nature and also covers categories which are not expressly mentioned therein. We are unable to agree. A particular expression is often defined by the Legislature by using the word 'means' or the word 'includes'. Sometimes the words 'means and includes' are used. The use of the word 'means' indicates that "definition is a hard-and-fast definition, and no other meaning can be assigned to the expression that is put down in definition". (See: Gough v. Gough, (1891) 2 QB665; Punjab D Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court [1990 (3) SCC 682, at p. 717]. The word 'includes' when used, enlarges the meaning of the expression defined s-o as to comprehend not only such things as they signify - according to their natural import but also those things which the clause declares that they shall include. The words "means and E _includes", on the other hand, indicate "an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions". (See : Dilworth v. Commissioner of Stamps ( 1899 AC 99 at pp. I 05-106) (Lord Watson); Mahalakshmi Oil Mills v. State ofA.P. ( 1989 1 SCC F 164, at p. 169). The use of the words "means and includes" in Rule 2(b) would, therefore, suggest that the definition of'college' is intended to be exhaustive and not extensive and would cover only the educational institutions falling in the categories specified in Rule 2(b) and other educational institutions are not comprehended. Insofar as engineering colleges are concerned, G their exclusion may be for the reason that the opening and running of the private engineering colleges are controlled through the Board ofTechnical Education and Training·and the Director of Technical Education in accordance with the directions issued by the AICTE from time to time. As noticed earlier the Grants-in- H

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A Aid Code contains provisions which, in many respects, cover the same field as is covered by the Act and the Rules. The Director of Technical Education has been entrusted with the functions of proper implementation of those provisions. There is nothing to show that the said arrangement was not working satisfactorily so as to be replaced by the system sought to be introduced by B the Act and the Rules. Rule 2(d), on the other hand, gives an indication that there was no intention to disturb the existing arrangement regarding private engineering colleges because in that rule the expression 'Director' is defined to mean the Director of Collegiate Education. The Director of Technical Education is c not included in the said definition indicating that the institutions which are under the control of Directorate of College Education only are to be covered by the Act and the Rules and technical educational institutions in the State of Tamil Nadu which are controlled by the Director of Technical Education are not so covered. D

20. The Rules have been made in exercise of the power conferred by Section 53 of the Act. Under Section 54(2) of the Act every rule made under the Act is required to be placed on the table of both Houses of the Legislature as soon as possible after it is made. It is accepted principle of statutory construction that "rules E made under a statute arc a legitimate aid to construction of the statute as contemporanea expositio" (See : Craies on Statute Law, 7th Edn., pp. 157-158; Tata Engineering and Locomotive Co. Ltd. v. Gram Panchayat, Pimpri Waghere 1977 (1) SCR 306, at p. 317). Rule 2(b) and Rule 2(d) defining the expression F 'College' and 'Director' can, therefore, be taken into consideration as Contemporanea Expositio for construing the expression "private college" in Section 2(8) of the Act. Moreover, the Act and the Rules form part of a composite scheme. Many of the provisions of the Act can be put into operation only after the relevant provision or fonn is prescribed in the Rules. In the absence of the Rules the Act cannot be enforced. If it is held that Rules do not apply to technical educational institutions the provisions of the Act cannot be enforced in respect of such institutions. There is, therefore, no escape from the conclusion that professional and technical educational institutions are excluded from the ambit of the Act and the High Court has rightly

STATE OF MAHARASHTRA & ORS. v." RELIANCE 353 INDUSTRIES LTD. & ORS. [ARUN ¥1SHRA, J:]

taken the said view. Since we agree with the view of the High A Court that professional and technical educational institutions are not covered by the Act and the Rules, we do not consider it necessary to go into the question whether the provisions of the Act fall within the ambi~ of Entry 25 of List III and do not relate to Entry 66 of List I." B

23Copy pinpoint23. It was also submitted that definition ofland means land in the ordinary sense. Therefore, the definition only provides for what it additionally includes. Learned Counsel for the respondent has relied upon Jagir Singh v. State ofBihar (1976) 2 SCC 942, thus: "21. The definition of the term "owner" is exhaustive and intended c to extend the meaning of the term by including within its sweep bailee of a public carrier vehicle or any manager acting on behalf of the owner. The intention of the legislature to extend the meaning of the term by the definition given by it will be frnstrated if what is intended to be inclusive is interpreted to exclude the actual owner. D b. Black Diamond Beverages v. C10, (1998) l SCC 458 at page 461

7. It is clear that the definition of "sale price" in Section 2(d) uses the words "means" and "includes". The first pa1t of the E sl_e_(\giti_911_.Qg_fin_gs tl1e tl}Q.i!Ding_9f th.Q.'N2I\!.''salg_m!c;.ti~nmtmu1'J, in our view. be given its ordinmy popular or natural meaning. The interpretation thereofis in no way controlled or affected by the second part which "includes" certain other things in the definition. This is a well-settled principle of construction. Craics on Statute Law 7th Edn. I .214) savs: F "An interpretation clause which extcncL5 the meaning of a word does not take away its ordinary meaning .... Lord Se I borne said in Robinson v. Baiton-Eccles Local Board [( 1883) 8 AC 798: 53 LJ Ch 226JAC atp. 801: G 'An interpretation clause of this kind is not meant to prevent the word receiving its ordiniuy, popular and natural sense whenever that would be properly applicable but to enable the word as used in the Act ... to be applied to something to which it would not ordinarily be an applicable."' (Emphasis supplied) H

354 SUPREME COURT REPORTS [2017] IO S.C.R.

A Reliance has also been placed in this regard on Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd. & Ors. ( 1987) 1 sec 424.

24Copy pinpoint24. In Jagir Singh v. State of Bihar (supra) this Court has considered the definition of owner. This Court has observed that the B legislative intent to be frustrated if interpreted to exclude the intent of the actual owner. There is no dispute with the aforesaid proposition, however, the definition of the land is inclusive and does not exclude actual owner. In case the State is found to be the owner of the land, it cannot be deprived ofacquisition of the structure sta1idingthereon. That the interpretation made by us is notto exclude the owner but the purposive c interpretation fulfils and recognizes concept of the dual ownership which has become common in the present day context. Moreover, the interest in part of the entire house, building or manufaetory can be acquired. The building ultimately forms part ofthc land and things attached to the earth and permanently fastened to anything attached to the earth and the benefits to arise out of the land.

25Copy pinpoint25. In Reserve Bank of India (supra) this court has laid down that when legislatures'fesort to inclusive definition i.e. to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words depending on the context by process of enlarging the definition may even become exhaustive. In our opinion, it has to be seen in the context of each and every provision in the Act to find out as to the meaning to be given to the inclusive definition. There is no dispute with the proposition laid down in the aforesaid decisions. By the interpretation made by us, there is no question of taking away very meaning of the land but the acquisition of the right in the land can only be with respect to the right of the owner. Obviously, only the interest belonging to the owner bas to be acquired and as per Section 49 of the Act, there can be acquisition of the part of the house, building or manufactory. Once option has not been exercised by the owner by insisting that whole of the building be acquired, it would be only of the interest which is existing in the part ofbuilding, house or manufactory. The decision in Reserve Bank of India (supra) also fails to sub-serve the cause espoused by the respondents.

26Copy pinpoint26. In Reserve Bank of India (supra), this Court has clarified that the Legislatures resort to include the definitions (a) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and

STATE OF MAHARASHTRA & ORS. v. RELIANCE 355 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

natural sense of the words and also the sense which the statute wishes to attribute to it, (b) to include meanings about which there may be some dispute, or (c) to bring under one nomenclature all transactions possessing ce11ain similar features but going under different names. Depending upon the context, in the process of enlarging, the definition may even become exhaustive. B

27Copy pinpoint27. Interpretation must depend upon the text and the context. They are the basis of interpretation. One may well say ifthe text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. If the statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than the statute is looked at without glasses provided by the context. We must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire act. No part of a statute or word of a statute can be construed in isolation.

28Copy pinpoint28. The Land Acquisition Act, 1894 was enacted since the Act of 1870 was found entirely ineffective for the protection either of the persons interested in lands taken up or of the public purse. The object of the E Land Acquisition Act, 1894 was to amend the then existing law for acquisition of law for public purpose and to determine the adequate amount of compensation to be paid on account of such acquisition.

29Copy pinpoint29. By looking at the definition as a whole in the scheme of the entire Land Acquisition Act and by reference to what preceded the enactment and the reasons for it, we have interpreted the word 'includes'. The word 'include' is opposite to the word 'exclude'. If the interpretation as suggested by the learned counsel for the respondents is accepted, then the definition of the land could not become an inclusive definition but the definition of "land" excludes certain factors. The expression 'land' includes benefits arising out of the land and things attached to the earth or permanently fastened to anything attached to the earth. The portion of the building cannot survive independent of the building and the building without the land. The word "land" should be understood having been covered by the elongated definition since it defines with inclusiveness that part of the building. H

356 SUPREME COURT REPORTS [2017] JO S.C.R.

30Copy pinpoint30. Having regard to the true intent of the meaning of the word 'land', the only interpretation possible in the context is the interpretation as made by us, inasmuch as such interpretation will not take away the very meaning of the land. In the matter on hand, owner of the land is the State whereas the owner of the building is a respondent. Since, building cannot stand without the land, the building also becomes part of the land. B However, since the owner of the building is different from the owner of the land, and if a portion of the building is required for public purpose, it is open for the State to· acquire that portion of the building by paying adequate compensation in respect of that portion of the building, as well as, in respect of proportionate diminution of the user if any of the land c under Section 23 of the LandAcquisition Act, 1894, in accordance with law. III. In Re : Object and Scheme of the Act

31Copy pinpoint31. It was further submitted on behalf of the respondents that to consider the context of definition of land the object and scheme of the D Act has to be taken into consideration. Reliance has been placed on Gimar Traders v. State of Maharashtra, 2011 (3) SCC I. "55. The LandAcquisitionAct was enacted as it was considered expedient to amend the law for acquisition of land needed for public purposes and for companies and paiiieularly for payment and determination of the amount of compensation to be paid on account of such acquisition. The Land AcquisitionAct. 1870 made it obligat01y for the Collector, to refer the matter to civil courts for a decision in cases of difference of opinion with interested person(s) as to value of the land as well as cases in which one of the claimants was absent, was the Collector was not empowered to make an award ex-parte even afrer notice. This requirement resulted in a lot of litigation, delay and expenses. According to the Statement of Objects and Reasons of the Land Acquisition Act the Act of 1870 had not, in practice, been found entirely effective for the protection either of the persons interested in lands taken up or of the public purpose. Thus, the law was amended by making the Collector's award final unless altered by a decree. The persons interested in the land thus still have the opportunity, if they desire, to prefer to an authority, quite independent of the Collector, their claims for more substantial H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 357 INDUSTRIES LTD. & ORS. [ARUN MISHRA,.J.]

compensation than ·what the Collector has awarded. Procedure A for determining the valuation of l<!nd was also proposed to be suitably changed.

56. Major amendments were proposed by Central Act 68of1984 to the Land Acquisition Act. The Statement of Objects and Reasons for this amending Bill posited that due to enonnous B expansion of the State's role in promoting public welfare and economic development since independence, acquisition ofland for public purposes, industrialisation, building of institutions, etc. has become far more numerous than ever before. Acquisition of land for private enterprises ought not to be placed on the same footing as acquisition for the State or for an enterprise under it. c The individuals and institutions who are unavoidably to be deprived of their property rights in land need to be adequately compensated for the loss keeping in view the sacrifice they have to make for larger interest of the community. The pendency of acquisition proceedings for long periods ofien caused hardship to the ailected parties and rendered unrealistic, the scale of compensation offered to them.

57. With this background the legislature felt that it was necessmy to restructure the legislative framework for acquisition ofland ·.so that it is more adequately governed by the objective of serving the interests of the community in harmony with the rights of the individuals. Recommendations on similar lines were also made by the Law Commission and while considering these proposals for amendment, the legislature carried out various amendments of significance in the existing Land Acquisition Act. F

58. Besides enlarging the definition of"public purpose", provision was also made for acquisition of land for non-governmental companies. Fmther, it provided the time-limit for completion of all formalities between issue of preliminary notification under Section 4(1) and declaration under Section 6(1) of the Land Acquisition Act. Section 11-A of the Land Acquisition Act was G introduced which provided for time-limit of two years, from the date of publication of declaration under Section 6 of the Central Act, within which the Collector should make its award under that Act. Provision was also made for taking of possession of H

358 SUPREME COURT REPORTS [2017) IO S.C.R.

A land by the Collector before the award is made in urgent cases.

59. From the objects <md reasons of the Land Acquisition Act it is clear that the primary object of this Act is acquisition ofland for a public purpose which may be "planned development" or even otherwise. In fact the provisions of the Land Acquisition B Act do not deal with the concept of development as is intended under the specific statutes like the MRTP Act, the Delhi Development Act 1957, the Bangalore Development Authority Act, 1976 (for short "the Bangalore Act"), etc. The primary purpose of the LandAcquisitionAct is to acquire land for public purpose and for companies as well as to award compensation to c the owners/interested persons in accordance with the provisions of this Act.

60. The acquisition proceedings commence with issuance of a notification under Section 4 of the Land Acquisition Act against which the interested persons arc entitled to file objections which D will be heard by the competent authority in accordance with the provisions of Section 5-A leading to issuance of declaration under Section 6 of the Land Acquisition Act. After complying with the requirements of Section 9 of the Land Acquisition Act, the Collector is expected to make an award under Section 11 of the E Central Act and interms of Section 11-A of the Land Acquisition Act. if the award is not made within two years from the date of publication of the declaration the acquisition proceedings shall lapse.

64. As is evident from the afore-narrated provisions the primary purpose and the only object of the Land Acquisition Act is acquisition of land and payment of compensation for such acquisition. It is not an Act dealing in extenso or otherwise with development and planning. The scheme of this Act is very simple. Despite the fact that it is compulsory acquisition which is in exercise of the State's power of eminent domain the legislature has still attempted to create a balance between compulsory acquisition on the one hand and rights of owner/interested person in land on the other. The acquisition proceedings are commenced with issuance of a notification under Section 4 of the Land

H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 359 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.] ,,c.

Acquisition Act for a public purpose and would end with the A payment of compensation for such acquired land. The mechanism provided under this Act is entirely rclatable to the . process of acquisition of land and payment of compensation.

66. The LandAcquisitionAct itself is a self-contained code within the framework of its limited purpose i.e. acquisition of land. It· B provides for complete machine for acquisition ofland including the process of execution, payment of compensation as well as legal remedies in case of any grievances."

32Copy pinpoint32. The respondents for the proposition that acquisition ofland is dominant purpose of Act as such land has to be necessarily acquired c under the Act have relied upon T.L. Prakash Ram Rao v. The District Collector, Ananthapur & Ors., ( 1993) 2 AP LJ 421 (HC) at page 422 in which the Andhra Pradesh High Court has laid down thus: "2 ..... Under the provisions of the Land Acquisition Act the dominant purpose is acquisition of land and that land may be D vacant may contain structures may contain trees and may.also contain wells. The Act never contemplates of acquisition of a well for the purpose of drawing water as a dominant purpose. To say that in acquiring the water sow·ce land also is involved, .and as such the Act is applicable will be simply misreading the provisions of the Act and particularly the definition of 'land' E thereunder. Section 3(a) of the Act defines 'land' as including benefits arise out of land and things attached to the earth or permanent fastened to anything attached to the earth. The definition ofland employed therein is similar to that of the words 'immovable property' in the General Clauses Act 1897. May be that the definition of land is not exhaustive but is inclusive definition but by stretching any far it cannot be deduced that the dominant purpose need not be acquisition ofland. Stretching the definition ofland to an extent what is inevitable is the acquisition. of land that should be a dominant purpose and consequentially the things attached to the said land be it buildings trees crops or wells can also be pai1 of acquisition. But if the dominant purpose is only to acquire a water source and then to notify the land involving the same the said acquisition docs not amount to acquisition of land and the Act is not at all applicable. It is clear H

360 SUPREME COURT REPORTS [2017] lOS.C.R.

A from the stand taken by Navodaya School -the 3rd respondent herein, which is beneficiary of the acquisition in the affidavit filed by it in support of the implead petition that the land is sought to be acquired for providing water source to the Navodaya School. The public purpose under the Act can be for providing land, be it vacant or with structures. trees or borewells, for certainly not to B the extent of grabbing somebody's water source and for that purpose mention the land surrounding the said borcwcll as a necessary consequence. Indisputably. the rcqu.isitioning authority docs not require the land for any public purpose; but they need water to cater to the needs of the students. staff and other c workers ofNavodaya School and as the water did not strike in the premises of the Navodaya School and rich water struck in the land of the petitioner, the said water source is sought to be acquired. As the Land Acquisition Act does not permit this kind of acquisition the petitioner cannot be deprived of his property and if it is done the same will be in infraction of constitutional guarantee under Article 300-A of the Constitution oflndia.''

33Copy pinpoint33. In our opinion, the submission with respect to object and scheme as discussed in Gimar Traders (supra) and T. L. Prakash Ram Rao (supra) docs not come in the way of acquisition. The object is to compensate the owner adequately. There is no doubt that pendency of acquisition proceedings are not to cause hardship to the affected parties. The purpose of the Act is to make additions for the public purpose and to award to the owners/ interested persons compensation in accordance with the provisions of the Act. The acquisition has been made for the public purpose in the instant case. The decision in the case of T.L. F Prakash Ram Rao (supra) does not come in the way of acquisition. The court has observed that definition of the land is not exhaustive, but is inclusive definition; but by stretching any far it cannot be deduced that the dominant purpose need not be acquisition of land and the things ~ttached to the said land can also be pai1 of the acquisition. But if the dominant purpose is only to acquire a water source and then to notify G the land involving the same, the said acquisition does not amount to acquisition ofland and the Act is not at all applicable. That situation was totally different from the instant case as the entire floors are being acquired for the purpose of housing of the offices and there is acute paucity of such spaces particularly in Mumbai and nearby places. When H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 361 . INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.)

flats can be sold independently, obviously they can be acquired also. As A all the rights in the floor are being acquired and the land beneath it need not be acquired more so it belongs to the Government there can be valid acquisition of such floors independently without land in such cases. IV. In Re : Whether State to acquire its own land underneath the buildings or other interest ? B

34Copy pinpoint34. The instant matters are of dual ownership. In both the cases owners of the building are not the owners of the land. The land belorigs to State of Maharashtra or Port Trust. In such a situation where the Government is the owner of the site, obviously Government could not have acquired the land and in the case of its own ownership, there was c no necessity for the acquisition ofland. The Privy Council has considered the precise question in Hari Chand & Ors. v. Secretary of State AIR (1939) PC 235 at page 236. In the said case a notification was issued which was served upon the proprietors of bungalows in which it was set out that the Government claimed to be the owner of the land upon which various btmgalows and outhouses were erected. They were desirous of · D acquiring the building thereon under the Act. An objection was raised that the notification was bad because it was not a notific~ition for acquisition ofland but a notification with intention for acquiring building on the land. As such the proceedings under the Land Acquisition Act were fundamentally bad because the notification upon which the E proceedings started was invalid. The Privy Council has held that when the Government was the owner of the site, building on the land could have been acquired. The Privy Council in Hari Chand (supra) considered the submissions urged during the compensation proceedings with respect to acquisition of building and not the land. It observed: F " ...... Accordingly a notification was served on ·each of the proprietors of the bungalows, and in the recital of each notification it is set out that the Government claimed to be the owners of the land upon which the various bungalows and outhouses had been erected. That is set out as a matter of narrative in the notification. Then it proceeds to state that the Government have given notice G that the land has been resumed by them and that they are desirous · now of acquiring the buildings thereon and ant_other outstanding interest therein, and for that purpose they invoke the provisions of the Land Acquisition Act of 1894. H

362 SUPREME COURT REPORTS [2017] JO S.C.R.

A The first point taken here has been that the notification was bad because it was not a notification for the acquisition of the land, but a notification of an intention to acquire only buildings on the land. It was said that the Land Acquisition Act only authorized notification of an intention to acquire land and therefore that the whole proceedings under the Land Acquisition Act were B fundamentally bad because the notification upon which the proceedings started was invalid. It has to be noticed however that in the Land Acquisition Act the expression 'land' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. c In the present case the Government's position being that they were the owners of the site, it.would have been manifestly idle for them to have proposed to acquire what was already their own, and therefore when they sought to put in force the provisions of the Land Acquisition Act they naturally requisitioned what D was not their own but what they desired to acquire, namely the buildings on the land. It appears to their Lordships that in any event this objection to the notification comes too late, because the parties proceeded under the Land Acquisition Act to follow forth all the procedure which that statute lays down right up to and including the final determination of compensation. The Court E that dealt with the matter was really a compensation Court, and if it had been intended to attack the whole proceedings as initially invalid this would more properly have been done before some other tribunal. The Court did however incidentally consider the question of the validity of the notice, and their Lordships agree with the view takenthat the notification is not open to objection. Junior counsel for the appellants sought to satisfy their Lordships that the statement in the recital, namely that the site belonged to the Government, was in fact, inaccurate and that the claimants were entitled to the sites upon which the various bungalows were erected. One thing is quite clear from the legal point of view and that is that a claimant who desires to obtain compensation must establish his title, and in the ease to which we were referred, the recent case in Secretary of State v. Satish Chandra Sen ( 1931) 18 AIR P. C I where the question of Cantonment tenure in Bengal was under consideration, it was made clear that al claimant must establish his title affirmatively. In the present case it may be that

STATE OF MAHARASHTRA & ORS. v. RELIANCE 363 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.)

there might be some question as to the Government's title, but it was for the claimants themselves to establish affirmatively their title to the sites. The Courts below ~hich had the advantage of having documents before them which have not been before their Lordships, went very fully into the matter and satisfied themselves that the claimants here had not established their title to the sites. B Their Lordships see no reason to differ from this conclusion." .

35Copy pinpoint35. In R. Umraomal & Ors. v. State of Tamil Nadu & Anr. AIR - 1986 Mad. 63, a Division Bench of the High Court of Madras has laid down that !~e Act does not contemplate or provide for acquisition of any interest in land belonging tb Government which is being acquired under ·the Act and the Government is the owner of the land which need not C acquire the land. Because no question of Government acquiring what is its own. The court observed; "4. The notification in G.O. Ms. No 2753 Revenue, dated 15- 12-1980 shows that the Government of Tamil Nadu intended to acquire 'the superstructures on the land in R. S. No. 80 and 882/ D 2 in Tondiarpet village, Tondiarpet taluk, Madras Dt, for the purpose of assigning the lands and the superstructures thereon to provide for' shopping facilities to small trnders and self-employed persons'. The impugned declaration under S. 6 of the Land Acquisition Act 1894, reads that the superstructures on the lands specified in the E schedules are needed for a public purpose, to wit, for the purpose of assigning the lands and the superstructures thereon to provide for shopping facilities to small trnders and self-employed persons. The contention of the learned counsel Mr. Dolia, for the appellants,·~~ is that the Government should have resorted to the Tamil Nadu Requisitioning and Acquisition oflmmovable Property Act 1956 F as that is the special enactment for acquisition of buildings and should not have resorted to the LandAcquisitionAct 1894, which is a Central enactment which provides for acquisition ofland for public purposes and for companies, and in fact in one of the grounds in the memorandum of appeal, it has been pointed out that the G notification under the provisions of the Land Acquisition Act is void and without jurisdiction. This contention, in our view, is not well-founded for the simple reason that under S. 3 of the Land Acquisition Act (Act 1 of 1894) the expression 'land' includes things attached to the earth or things permanently fastened to H

364 · SUPREME COURT REPORTS (2017] 10 S.C.R.

A anything attached to the earth. Secondly, it must be noted that the lands in question belong to Government and the appellants are lessees of the land. It is therefore clear that the Government did not propose to acquire what was already their own, but only the superstructures built upon their lands. In Deputy Collectm; Calicuf'Dn. v. Aiyavu, (1911) 9 Ind Cas 34 l, Wallis J. as he then B was, observed- "It is, in my opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired under the Act, but only for the acquisition of such interests in the land as do c not already, belong to the Government." It is, therefore, manifest that when the Government is the owner of the land, it need not acquire the land, because there can be no question of Government acquiring what is its own. It has therefore to acquire only the superstructures which stood on the land D belonging to it and such an application (acquisition?) can be made under the Land Acquisition Act (Act 1of 1894). We are, therefore, of the view that the Government was not wrong in resorting to Act I of 1894. That disposes of one of the challenges made to the impugned notification."

36Copy pinpoint36. A Division Bench of the High Court ofAllahabad in Secretmy of State v. Allahabad Bank Ltd. AIR 1939 All. 34 observed that it is open to the Government to deny that the owners have any interest in the land as opposed to the buildings. What has been emphasized is that the Government would have to make a claim to all the interests of the owners of the buildings, whatever that might be. It was held that the reference under section 18 could not have been refused on the ground that Government have in effect acquired the buildings and not the lands forming site of the buildings. In the said case, court observed: "5. From the above it is clear that the view of the Full Bench was that in order that proceedings under the Act should be taken the Government were bound to acquire the land, that is to say, they could not claim to acquire buildings only, they were bound to claim the acquisition of the whole interest of the ownerofthe buildings. It was open to the Government to deny that the owner had any interest in the land as opposed to buildings, but in order to bring H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 365 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.)

the proceedings within the Act the Government would have to make a claim to all the interest of the owner of the buildings , whatever that might be."

37Copy pinpoint37. It was submitted on behalf of the respondents that definition of land under section 3(a) ofthc Actincludes "benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth" but docs not define land as meaning "benefits to arise out ofland, and things attached to the earth or permanently fastened to anything attached to the earth". Thus, there cannot be an acquisition of only a portion of a building without acquiring the underlying land. The submission is based upon Raja Shyam Chunder Mardraj & Ors. v. The Secretary of State for India in Council (1907-08) 12 CWN 569 ·c at page 572. Following is the relevant discussion made by the Calcutta High Court: "The first matter which strikes us in connection with, and which seems to be a fatal objection to these proceedings is that the rights of fishery which have now been acquired were previously acquired by Government in 1896. The Government then took up the foreshore over which the fishery rights now to be acquired are exercised, and consequently acquired the foreshore and all rights existing in connection with it and exercised over it. The Government cannot therefore take them up again. The second objection to these proceedings is that the Government is now taking up fishery rights, that is incorporeal rights without taking up the land over which they are exercised and which, as already pointed out Government has already taken up, and which is it.s own property. Government cannot in our opinion do this under the LandAcquisitionAct. Land is defined in the Act as including benefits arising out ofland, etc. But land is not defined as meaning benefits arising out ofland. Therefore, fishe1y rights are not land, and it is only land, including the rights arising out of it, but not the rights detached from the land, that can be acquired under the Act. The Government pleader calls our attention to the definition of "persons interested," in which it is said that a person shall be deemed to be interested in land, if he is interested in an casement affecting the land." This is no doubt correct, but it does not follow that because a person interested in an easement affecting the land may be entitled to share in the compensation awarded for H

366 SUPREME COURT REPORTS [2017] JO S.C.R.

A the land that an easement comes within the definition of land. and can be acquired under the Act detached from the land affected by it."

38Copy pinpoint38. In order to buttress the aforesaid submission, reliance has also been placed on Dasarath Sahu & Ors. v. Secy. of State, AIR 1916 B Pat. 330(1) in which the Comt has laid down thus: "2. The proceedings appear to have been misconceived from the outset. No doubt the definition in Section 3(a) of the Act includes in the word "land" things attached to the earth, but the Act does not contemplate the acquisition of things attached to c the land without the land itself. The law upon this point has been clearly laid down in Shyam Chunder Mardraj v.Secy. of State [(1908) 35 Cal 525.], where it was held that Government could not use the Land Acquisition Act for the purpose of acquiring fishery rights over land which was already the property of Government. It was pointed out that it is only the land including the rights which arise out of it, and not merely some subsidiary right. which is capable of acquisition under the Act."

39Copy pinpoint39. The respondents have also relied upon the decision of Allahabad High Court in Makhan Lal & Ors. v. Se(JI. of State, AIR 1934 AIL 260 as to their 'land'. Following is the relevant po1tion of the decision: "22 ..... In Dasarath Sahu v. Secy, o.fState [(1916) 35 IC 97.) , the Patna High Court held that the term "land" in Section 3(a) of the LandAcquisitionAct, included things attached to the earth, and the Act did not contemplate the acquisition of only things attached to the land without the land itself.

23. In the case before the Patna High Court an attempt had been made to acquire things standing on the land apart from the land itself, and the High Court held that the proceedings were without jurisdiction. On behalf of the Secretary of State it has been argued that in this particular case what was sought to be acquired was not the site namely the land but only the buildings thereon. In our opinion this argument is not correct. Firstly, it would not be open to the Local Government to acquire anything apart from the land and, secondly, as a matter of fact, the Notification indicates that what was sought to be acquired was H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 367 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

land. We have quoted the Notification and we may point out that the word "land" clearly appears on the face ofit. The Notification begins with these words: "The land designated below," and under this Notification appears a specification of the land."

40Copy pinpoint40. In Raja Shyam Chunder Mardraj v. Secretary of State for India Council (supra), it has been observed that the Government was taking up fishing rights without taking up the land over which they are exercised. It was observed that Government could not have taken up the fishery rights. It was held that fishery rights are not land, and it is only land, including the rights arising out ofit, but not the rights detached from the land can be acquired under the Act. In Dasarath Sahu (supra) it has also observed that Section 3(a) includes with the word "land" C things attached to the earth, but the Act does not contemplate the acquisition of things attached to the land without the land itself. Reliance was placed on Raja Shyam Chunder Mardraj (supra). In Makhan Lal v. Secy. of State (supra) and Secretary of State v. Allahabad Bank Ltd. (supra) the decision in Dashrath Sahu (supra), which has been D followed.

41Copy pinpoint41. However, this Court in Collector o.f Bombay v. Nusserwanji Rattanji Mistri andOrs., AIR l 955 SC 298 has considered the question that when the Government was having interest in the land and acquires a land under the provisions of the LandAcquisition Act, the Government E acquires the sum total of private interests subsisting in them. If the Government has itself an interest in the land it is only to acquire other interest outstanding therein, the Government interest cannot be acquired under the Act though an investigation can be made of such interest, but that would not make the subject of acquisition. This Court observed thus; F

"(12) We are unable to accept his contention. When the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them. Ifthe Government G has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user. In In the Matter of the Land Acquisition Act: The Government ofBombay v. Esupali Salebhai I.LR [ 1909] Born, 618 Batchelor, J. observed : H

p. 368

A '.1n__QHlt;:L~-9!4B_Qp_y~r.m:J:IJ:.!1L1~~-J. Lscc_l!lli_!Q_fil9~_m_~L!.1.9! debarred from acquiring and paying for the onlv outstanding interests merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compensation based upon the market value of the whole land. must be distributed among the claimants". B There, the Government claimed ownership of the land on which there stood buildings belonging to the claimants, and it was held that the Government was bound to acquire and pay only for the superstructure, as it was already the owner of the site. Similarly in Deputy Collector, Calicut Division v. Ai ya vu Pillay [1911] 9 c LC. 341, Wallis, .J. (as he then was) observed: "It is. in my opinion, clear that the Act does not contemplate or provide for the acquisition ofany interest which already belongs to Government in land which is being acquired under the Act. but only for the acquisition of such interests in the land as do D not already belong to the Government". :\:_Vith these observations, we arc in entire agreement. When Government possesses an interest in land which is the subiect of ~1fsmi~iJi..Q.!!. !J!l..Q~r_ll:!g_Ag!,..J..!.rn.U!.1 ter£.§Li.:?_J!~_dLoJ!lliiilf slt.~11 acquisition, because there can be no question of Government E acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition. The language of section VIII of Act No. VI of l 857 also supports F this construction. Under that section, the lands vest in the Government "free from all other estates, rights, titles and interests", which must clearly mean other than those possessed by the Government. It is on this understanding of the section that the award, Exhibit P, Ci is framed. The scheme of it is that the interests of the occupants arc ascertained and valued, and the Government is directed to pay the compensation fixc.d for them. There is no valuation of the right of the Government to levy assessment on the lands, and there is no award of compensation therefore.

H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 369 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

(13) We have so far assumed with the respondents that the right of the Government to levy assessment is an interest in land within the meaning of section VIII of Act VI of 1857. But is this assumption well-founded? We think not. In its normal acceptation, "interest" means one or more of those rights which go to make up "ownership". It will include for example, mortgage, lease, charge, casement and the like, but the right to impose a tax on land is a prerogative right of the Crown, paramount to the ownership over the land and outside it. Ui1der the scheme of the Land Acquisition Act, what is acquired is only the ownership over the lands, or the inferior rights comprised therein. Section 3(b) of the Land Acquisition Act No. I ofl 894 defines a "person c interested" as including "all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if he is interested in an easement affecting the land". D Section 9 requires that notices should be given to all persons who are interested in the land. Under section 11, the Collector has to value the land, and app011ion the coinpcnsation among the claimants according to their interest in the land. Under section 16, when the Collector make an award "he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrance". The word "encumbrance" in this section can onlv mean interests in respect of which a compensation was made under section 11,. or could have been claimed. It cannot include the right of the Government to levy assessment on the lands. The Government is not a "person interested" within the definition in section 3(b). and, as already stated, the Act does not contemplate its interest being valued or compensation being awarded therefore. (14) It is true that there is in Act No. VI of 1857 nothing corresponding to section 3(b) of Act No. I of 1984, but an examination of the provisions of Act No. VI of 1857 clearly, shows that the subject-matter of acquisition under that .Act was only ownership over the lands or its constituent rights and not the right of the Government to levy assessment. The provisions H

370 SUPREME COURT REPORTS [2017] lOS.C.R.

A relating to the issue of notices to persons interested and the apportionment of compensation among them are substantially the same.'' (Emphasis supplied)

42Copy pinpoint42. In Special Land Acquisition Officer and Rehabilitation B Officer, Sagar v. MS. Seshagiri Rao & Am: AIR 1968 SC l 045 the high court has observed that the Government had failed to exercise the right that it had under the terms of the grant and had adopted the procedure prescribed by the Land Acquisition Act. In the said factual matrix this court has laid down that the Act is silent as to the acquisition of partial c interests in the land but it cannot be inferred therefrom that interest in the land is restricted because of the existence of rights of the State in the land cannot be acquired. Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest subject to the clog. This Court has further observed that State in a proceeding for acquisition does not acquire its own interest in the land, thus

"(4) The High Court also placed reliance upon the judgment of the Madras High Court in The State of Madras v. A. Y. S. Parisutha Nadar [1961] 2 M.L.J. 285. In that ease the main question decided was whether it was open to a claimant to compensation for land under acquisition 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 respect of any parcel of the land in the estate could be put forward by any other person as against the State Government without obtaining a ryotwari patta under the machinery oftheAct. The High Court rejected that contention observing that the Government 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 H

STATE OF MAHARASHTRA & ORS. v. RELIANCE 371 INDUSTRIES LTD. & ORS. [ARUN MISHRA, J.]

provided in the Act, and that the Government was incompetent A 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 a public purpose. By B acquisition of land is intended the purchase of such interest outstanding in others as clog the right of the Government to use the land for the public purpose. Where the land is owned by a single person. the entire market value payable for deprivation of the ownership is payable to that person: if the interest is divided, for instance. where it belongs to several persons, or where there is a mortgage or a lease outstanding on the land, or the land belongs to one and a house thereon to another, or limited interests in the land are vested in different persons, apportionment of compensation is contemplated. The Act is. it is true. silent as to the acquisition of partial interests in the land, but it cannot be inforred therefrom that interest in land restricted because of the existence of rights of the State in the land cannot be acquired. When land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land. Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest, subject to the clog. ., ( 5) We arc unable to agree with the High Court of Madras that when land is notified for acquisition, and in the land the State has an interest, or the ownership of the land is subject to a restrictive covenant in favour of the State, the State is topped from setting up its interest or right in the proceedings for acquisition. The State in a proceeding for acquisition docs not acquire it§ own interest in the land. and the Collector offers and the Civil Court assesses compensation for acquisition of the interest ofthe 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 acquisition ofland notified for acquisition that the interest proposed to be acquired is a restrictive interest. H

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