Holding

Section 34(1) of the Cochin Town Planning Act is valid except for the clause excluding Section 25 of the Land Acquisition Act, which is unconstitutional and severable.

Summary

The State of Kerala appealed against a Kerala High Court judgment that struck down Sections 34(1) and 34(2A) of the Cochin Town Planning Act as violative of Article 14. The Supreme Court examined whether the Act's differential treatment of compensation, particularly the exclusion of solatium, constituted unreasonable classification. It also considered whether the scheme‑making process without a fixed time limit was arbitrary and whether the authority had a real choice between acquiring land under the Town Planning Act or the Kerala Land Acquisition Act. The Court held that the exclusion of Section 25 of the Land Acquisition Act from Section 34(1) is unconstitutional but severable, and that the remaining provisions of Section 34 are valid. Consequently, Section 34(1) is to be read as omitting the words "and s.25", thereby making solatium payable under the Land Acquisition Act. The appeal was allowed in part, with the discriminatory clause struck down and the rest of the Act upheld.

Issues considered

Whether Sections 34(1) and 34(2A) of the Cochin Town Planning Act violate Article 14 by denying solatium in compensation.
Whether the lack of a fixed time limit for government sanction of town planning schemes renders the Act arbitrary and unconstitutional.
Whether the authority has a real, discretionary choice between acquiring land under the Town Planning Act and the Kerala Land Acquisition Act, leading to arbitrariness.
Whether classification of compensation based on the public purpose of acquisition is permissible under Article 14.
Whether the unconstitutional portion of Section 34(1) can be severed without striking down the entire provision.

Legislation cited

Cochin Town Planning Acts. 10, s. 12, s. 15, s. 32, s. 34(1), s. 34(2A), s. 6, s. 8, s. 9
Constitution of Indias. Article 14
Kerala Land Acquisition Act, 1961s. 25, s. 6
Land Acquisition Act, 1894s. 25, s. 6

Subjects

Town Planning ActLand AcquisitionArticle 14EqualityCompensationSolatiumSeverabilityUrban DevelopmentScheme ApprovalConstitutional Validity

Judgment

290

A STATE OF KERALA & ORS. ETC.
v.
T. N. PETER & ANR. ETC.
April I 1980

• (V. R. KRISHNA IYER AND 0. CHrnNAPPA REDDY, JJ.]

Cochin Town Planning Act-S.34(1) validity of.
The Cochin Town Planning Act in particular contemplates the creation of
a town planning trust, the preparation of town planning schemes (section 12)
acquisition of lands in this behalf (section 32) compensation for such compul·
C sory taking (section 34) and modifications in the manner of acquisition and
the mode of compensation in the Kerala Land Acquisition Act.
The petitioners' writ petitions challenging the validity of the Town Plan-
ning Act were allowed by the High Court on the gronnd that the provisions
of Section 34(1) and 34(2A) were unconstitutional being violative of article
14 of the Constitution.
D In appeal to this Court it was contended that by the use of the provisions
for making schemes under section 8 or section 10, the authority may indefi-
nitely immobilize the owner's ability to deal with his land since section 15
clamps restrictions and this is unreasonable.
HELD : 1. City improvement schemes have facets which mark them out
from other land acquisition proposals. To miss the massive import of the
z specialised nature of important schemes is to expose one's innocence of the-
dynam.ics of urban development. The statute has left it to the government
to deal expeditiously with the scheme and there are sufficient guidelines in
the Act not to make the gap between the draft scheme and governmental
sanction too procrastinatory to be arbitrary. [294 G-H]
2. Section 12(6) imparts :finality to the scheme and this corresponds to the
declaration under section 6 of the Land Acquisition Act. A conspectus of the
F relevant provisions of the Act makes it clear that improvement scheme cannot
hang on indefinitely and an outside limit of two years is given for the prepa-
ration and publication of draft schemes from the time the initial resolution
to make or adopt the scheme is passed by the Municipal Council. Concept-
wise and strategy-wise dt:velopment schemes stand on a separate footing and
classification of town planning schemes differently from the routine projects
demanding compulsory acquisition may certainly be justified as blised on
~G
rational differentia which has a reasonable relation to the end in view namely
improvement of towns and disciplining their d'evelopment. (295 F-G]
3. There is no substance in the argument that if the land is acquired under
the Town Planning Act no solatium is payable while if the land is acquired
under the Land Acquisition Act it is a statnlory obligation of the acquiring
government to pay solatium. The Town Planning Act is a special statute
H where lands have to be acquired on large scale and as early and as quickly
as possible so that schemes may be implemented with promptitude. There is-
in addition a specific and, purposeful provision excluding some sections of the-
STATE V. T. N. PETER 291

Kerala Land Acquisition Act. In such circumstances it is incredible that the A
authority acting under the Act will sabotage chapter VII, in particular section
34, by resorting to the Kerala Land Acquisition Act in derogation of the ex-
press provision facilitating acquisition of lands on less onerous terms. [299C-D]

Magan/al v. Municipal Corporation, [1975] I S.C.R. p. 23, referred to.

4. The amount of compensation payable has no bearing on the distinction B
whether the lands are acquired for housing or hospital, irrigation schemes or
town improvement, school building or police station. S(a) The exclusion of
· section 25 of the Land Acquisition Act from section 34 of the Act is unconsti-
tutional. But it is severable. [302G]

(b) The only discriminatory factor as between section 34 of the Act and
section 25 of the Land Acquisition Act vis-a~vis quantification of compensation C
is the non-payment of solatium in the former case because of the provisions
of section 34(1) and that section 25 of the Land Acquisition Act shall have
no application. To achieve the virtue of equality and eliminate the vice of
inequality what is needed is the obliteration of section 25 of the Land Acquisi-
tion Act from section 34(1) of the Town Planning Act. The whole of section
34(1) does not have to be struck down. Once the discriminatory and void
part in section 34(1) of the Act is excised equality is restored. The owner will D
then be entitled to the same compensation including solatium that he may be
eligible under the land Acquisition Act. [303E-F]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 848-850
;I
of 1977.
From the Judgment and Order dated 16-7-1976 of the Kerala E
High Court in W.A. Nos .. 910, 194 and 253/75.
AND
CiVlL APPEAL Nos, 666-669 of 1978.
From the Judgment and decree dated 8-6-1977 of the Kerala High F
Court in W.A. Nos. 364-365, 472 and 473 of 1975.
P. Govindan Nair and K. R. Nambiar for the Appellants in CAs.
848/77 _and 666-667 /78 and for Respondents 2 to 4 in CA 849 /77 and
2-3 in CA 850/77.
M. M. Abdul Khader and N. Sudhakaran for the Appellant in
G
CAs. 849-850/77 and Respondent 2 in CA 848/77 and RR! in CA
666/78, 667/78 and RR 2 in CA 668-669/78.
T. S. Krishnarr.oorthy Iyer, T. P. Sundara Rajan and P. K. Pillai
for Respondent No. 1 in 848/77.
T. L. Vishwanath Iyer, and S. Baiakrishnan for the Respondent
B
No. I in CAs. 668-669/78 and RR 2 in CAs. 666-667 /78.
The Judgment of the Court was delivered by
292 SUPREME COURT REPORTS [1980] 3 S.C.R.

KRISHNA IYER, J. Law and development, as yet a Cinderella of
our corpus juris, is a burgeoning branch of creative jurisprudence which
needs to be nourished with judicious care, by courts in developing
countries. The Town Planning Act, a developmental legislation
amended and updated by the Kerala Legislature, was designed to
draw up plans and to execute projects for the improvement of the
B towns and cities of that over-crowded State with its populous multi-
tudes uncontrollably spiralling, defying social hygiene and economic
engineering. Although the Act is of 1932 and originally confined to
the Travancore portion of the Kerala State, it has received amendatory
attention and now applies to the whole of Kerala with beneficial im-
pact upon explosive cities like Cochin. This legislation, naturally,
c has made some deviation from the Kerala Land Acquisition Act,
1961, but having received insufficient attention from the draftsman
on constitutional provisions, has landed the Act in litigation through a
challenge in the High Court where it met with its judicial Waterloo
when a Division Bench invalidated Section 31(1) and 34(2A) which
were the strategic provisions whose 'exit from the statute would vir-
0 tually scotch the whole measure. The State of Kerala has come ap
in appeal, although the immediate victim is the Cochin Town Plan-
ning Trust.

The schematic projection of the Town Planning Act (the Act,
for short) ·may be a good starting point for the discussion of the sub-
E
missions made at the Bar. The Act, with a prophetic touch, envisions
explosive urban developments leading to terrific stresses and strains,
human, industrial and societal. Land is at the base of all develop-
ment, and demand for the limited space available in the cities may
so defile and distort planned progress as to give future shock nnless
scientific social engineering takes hold of the situation. The State
of its specialized agencies must take pre-emptive action and regulate
the process of growth. The Act fills this need and contemplates the
creation of a Town Planning Trust, preparation of town planning
schemes, acquisition of lands in this behalf, compensation for better-
ment by citizens and other miscellaneous provisions, apart from crea-
c tion of development anthorities. While this is the sweep of the statute, .....
our concern is limited to schemes sanctioned by Section 12, acqui-
sition of lands for such schemes under Section 32, compensation for
such compulsory taking under Section 34 and the modifications in the
manner of acquisition and the mode of compensation wrought into the
Land Acquisition Act by the above provisions of the Town Planning
ft Act. It is indisputable that the compensation payable and certain
other matters connected therewith, differ as between the provisions in
this Act and the Land Acquisition Act. The latter is more beneficial
STATE v. T. N. PETER (Krishna Iyer, J.) 293

to the owner and the challenge, naturally, has stemmed from this
allegedly invidious discrimination. In two separate cases, two judges
upheld the challenge and, on appeal, the High Court affirmed the
holdings that the provisions of Sub-section 34(1) and 34(2A) were
unconstitutional, being violative of Article 14. Hence these appeals.
We will now proceed to scan the substance of the submissions and JI,
the reasoning in the High Court's judgment.
Counsel for the State, Shri P. Govindan Nair, supported by
counsel for the Trust, Shri Abdul Khader, have canvassed the correct-
ness of the reasons which have appealed to the High Court, and some
decisions of this Court have been brought to our notice in this con- C
nection. The owners of the lands acquired have been represented
before us by Sri T. C. Raghavan who has, in his short submission,
supported the judgment under appeal. One of the appeals has be-
come infructious, because the State, after the High Court invalidated
Section 34 of the Act, proceeded under the Land Acquisition Act,
acquired the land, paid compensation and took possession thereof, I>
thus completely satisfying the land owner. Shri T. S. Krishnamurthi
Iyer, appearing for the owner, pointed out this circumstance and so
we dismissed that appeal but mention it here because Shri T. C. Ragha-
van has relied on this fact in support of one of his arguments, as we
will presently disclose. Before entering into the merits, we may recall
:J the submissions of Shri T. L. Viswanathan, a young lawyer from E
Kernla, who made us feel that orality, marked by pointed brevity and
suasive precision, is more telling than advocacy with counter-produc-
tive prolixity. Although the responsible scrutiny that a bench deci-
sion of the High Court deserves has been bestowed, we are unable to
support the judgment under appeal or the arguments of counsel in
support. F

The controversy regarding the vires of Sec. 34 revolved round a
few points. Before us, Art. 14 has loomed large and a submission has
been made that by use of the provisions for making schemes under
Sec. 8 or Sec. IO the authority may indefinitely immobilise the owner's
ability to deal with his land since Sec. 15 clamps restrictions, and this G
is unreasonable.
We agree that it is a hardship for the owner of the land if his
" ability to deal with his property is either restricted or prevented by a
notification, and nothing happens, thereafter, leaving him guessing as
to what the State may eventually do. Indeed, if such a state of sus-
pense continues for unlimited periods, it may be unreasonable res-
triction on the right to property, although currently the right to pro-
294 SUPREME COURT REPOlUS l l 980] 3 S.C.R.
perty itself has been taken away from Part III. That apart, we must
see whether there is any justifiable classification between common cases
of compulsory acquisition under the Land Acquisition Act and the spe-
cial class of acquisitions covered by the Town Planning Act which +
may furnish a differentia sufficient to repel the attack of Article 14. Sec-
tion 15 of the Act forbids dealings by the owner in many ways, once the
B publication of a notification is made. The grievance particularised
by Shri Raghavan is that after a draft scheme has been prepared by
the municipal council and published, it becomes operational only on
the sanction by Government but there is no time limit fixed in Sec. 12
within which Government shall sanction. Supposing it takes several
years for Government to express its approval or dis-approval, the
c owner may suffer.

We regard this grievance as mythical, not real, for more than one
reason. The scheme is for improvement of a town and, therefore,
has a sense of urgency implicit in it. Government is aware of this
import and it is fanciful apprehension to imagine that lazy insouciance
D will make Government slumber over the draft scheme for long years.
Expeditious despatch:is writ large on the process and that is an in-built
guideline in the statute. At the same time, taking a pragmatic view,
no precise time scale can be fixed in the Act because of the myriad
factors which are to be considered by Government before granting
sanction to a scheme in its original form or after modification. Sec-
tion 12 and the other provisions give us some idea of the difficulty
of a rigid time-frame being written into the statute especially when
schemes may be small or big, simple or complex, demanding enquiries
or provoking discontent. The many exercises, the differences of scale,
the diverse consequences, the overall implications of developmental
schemes and projects and the plurality of considerations, expert tech-
I F
niques and frequent consultations, hearings and other factors, pre-
I
cedent to according sanction are such that the many-sided dimension ·~

of the sanctioning process makes fixation of rigid time limits by the
statute an impractical prescription. As pointed out earlier, city im-
provement schemes have facets which mark them out from other land
G acquisition proposals. To miss the massive import and specialised
nature of improvement schemes is to expose one's innocence of the
dynamics of urban development. Shri Raghavan fairly pointed out
that, in other stages, the Act provides for limitation in time (for example,
sec. 33 which fixes a period of three years between the date of noti-
fication and the actual acquisiton). Only in one minimal area where
B time-limit may not be workable, it has not been specified. The statute
has left it to Government to deal expeditiously with the scheme and
we see sufficient guideline in the Act not to make the gap between the
STATE v. T. N. PETER (Krishna Iyer, J.) 295

draft scheme and governmental sanction too procrastinatory to be A
arbitrary. We need hardly say, that the court is not powerless to quash
and grant relief where, arbitrary protraction or mala fide inaction of
authorities injures an owner.
,,
An aside : We are surprised at the obsolescent and obscurantist
vocabulary surviving in the Town Planning Act because there are many B
feudal and incongruous expressions such as 'our Governments and
references to a Land Acquisition Act which has already been repealed
by the Kerala Land Acquisition Act, 1961. Modernisation is a pro·
cess necessary even for the statute book and yet it has not been done,
despite opportunity for the legislature, while amending later, to carry
out such simple, verbal and yet necessary changes. Be it remembered C
that the Town Planning Act did undergo an extensive amendment as
late as 1976 when, surely, some of the verbal replacements could easily
have been made. Medievalism lingering in legislations is hardly a
tribute to the awareness of our legislators.

Section 12 of the Act provides for publishing the draft schemes D
so that objections or suggestions may be put forward by affected per·
sons. The scheme is then passed by the Municipal Council, of course,
after considering objections and suggestions. Thereupon, it is sub·
mitted to the Government for sanction and the fact of such submis·
sion is also published so that the public may still raise objections or
make suggestions to Govt. which will consider them, make further E
inquiries, if necessary, and ultimately sanction the scheme with or
without modifications or may even refuse sanction or return the scheme
to the Council for fresh consideration. Once the scheme is sanctioned
by the Government, it is again published. Section 12(6) imparts
finality to the scheme and this virtually corresponds to the declaration
F
under sec. 6 of the Land Acquisition Act. Chapter III of the Act
is comprehensive and complex because the subject of scheme-makinlf
liemands expert attention and affects community interest. A Direc-
tor of Town Planning is appointed who shall be consulted by Munici·
pal Councils in matters of town planning. Developmental schemes
are not sudden creations. On the other hand, the Municipal Council G
first decides to prepare a scheme, adopts a draft scheme, if any, made
by the owners of the lands, prepares the necessary plan of the lands
which is proposed to be included in the scheme and notify its reso·
lution for public information. A copy of the plan is kept for the
inspection of the public. Since all improvement schemes are matters
of public concern, on the passing of a resolution and its notification H
under sec. 8, a time-bound obligation is cast on the Municipal Council
by s. 9, which reads thus :
296 SUPREME COURT REPORTS [1980] 3 s 1.. l~

A "S. 9 ; Publication of draft scheme :
(1) If the resolution is to make a scheme, municipal council
shall, within twelve months from the date of the noti-
fication under s.8 or within such further period not
+
exceeding twelve months, as our Govermnent may v
allow, and after consulting, in the prescribed manner,
B
the owners of lands and buildings in the area affected,
prepare and publish a draft scheme."

It is apparent that improvement schemes cannot hang on indefi-
nitely and an outside limit of 2 years is given for the preparation and
publication of draft schemes from the initial resolution to make or
c adopt the scheme is passed by the Municipal Council. Government
itself may step in and direct the Municipal Council to prepare schemes
and sec. 10 empowers it in this behalf. Sec. 11 contains detailed
provisions regarding the material to be included in the draft scheme.
These are preparatory exercises, and then comes the sanction of the
D scheme by the Government under Sec. 12. We indicate the elaborate
character of the strategy, stages, contents and character of schemes
for improvement and the opportunities for objections and suggestions
to the public and the consultation with technical experts and Govern-
ment, time and again, only to emphasise the complex nature of modern
urban development schemes which makes it a different category al-
E together from the common run of 'public purposes' for which com-
pulsory acquisition is undertaken by the State. Conceptwise and
strategywise, development schemes stand on a separate footing and
classification of town planning schemes differently from the routine
projects demanding compulsory acquisition may certainly be justified
as based on a rational differentia which has a reasonable relation to
F the end in view viz., improvement of towns and discipling their deve-
lopment.
Once this basic factor is recognised, the raison detre of a separate
legislation for and separate treatment of town planning as a special
subject becomes clear. It was pointed out that under the Kerala
G Land Acquisition Act, there is a time limit of 2 years written into
Section 6 by engrafting a proviso thereto through an amendment of
1968 Act (Act 29 of 1968). Section 6 deals with a declaration that
land is required for a public purpose and the relevant proviso thereto
reads :
"S.6(i) Proviso :
H
Provided that no declaration in respect of any particular
land covered by a notification under sub-section (l) of
STATE v . .T. N. PETER (Krishna Iyer, J.) 297

Sec. 3 shall be made after the expiry of two years from the A
date of publication of such notification."
+ An argument was put forward that under the Land Acquisition Act
there is thus a protection against unlimited uncertainty for the owners
once Jands are frozen in the matter of dealing with them by an initial
notification. This protection against protraction and inaction on B
the part of the State and immobilisation of ownership is absent in the
Town Planning Act. According to Mr. T. C. Raghavan, appearing
for sorre respondents, this makes for arbitrariness and discrimination
invalidatory of the relevant provisions of the Town Planning Act.
In our view there is no substance in this submission, having regard to
the specialised nature of improvement schemes and the democratic 0
participation in the process required in such cases. We repel the
submission ..

Much argument was addressed on the 'either or' arbitrariness
implicit ins. 33 of the Act. The precise contention is that it is open to
the Trust to acquire either under the Kerala Land Acquisition Act D
or under Chapter VII of the Town Planning Act. In the latter event,
no solatium is payable while under the former statute it is a statutory
obligation of the acquiring Govt. Thus, if an Authority has an option
to proceed under one statute or the other and the consequences upon
the owner are more onerous or less, such a facultative provision bears
the lethal vice of arbitrariness in its bosom and is violative of Art. 14
E
and is therefore, void. Section 32 of the Act is the foundation for
this argument and reads thus :
32. Modification of Land Acquisition Act :
Immovable property required for the purpose of town F
\ planning scheme shall be deemed to be land needed for a
purpose within the meaning of the Land Acquisition Act,
XI of 1089, and may be acquired under the said (Act) modi-
fied in tbe manner provided in this chapter.
What is spun out of the words used is that for the purposes of town G
planning schemes an immovable property "may be acquired under the
said Act (The Land Acquisition Act) modified in the manner provided
in this Chapter". Of course, Chapter VII, particularly sub-sec. (I)
of s. 34 thereof, relates to compensation and does not provide for
payment of solatium. Moreover, it is mentioned that the provisions
of ss. 14, 22 and 23 (both sides agree, this should be read a> Sec. 25) R
of the Land Acquisition Act shall have no application in the acqui-
sition of prcperty for the purpose of the Town Planning Act.
2Q-189SCI/80
298 SUPREME COURT REPORTS [1980] 3 S.C.Jt.

A We do not accept the argument that there is a real option for the
authority to acquire either under the Land Acquisition Act or under
the Town Planning Act when land is needed for a scheme. Theore-
tically, yes, but practically, no. Which sensible statutory functionary,
+
responsible to the Treasury and to the community, will resort to the
more expensive process under the Land Acquisition Act as against the
B specially designed and less costly provision under s. 34? Fanciful
possibilities, freak exercise and speculative aberrations art not realistic
enough for constitutional invalidation on the score of actual alter··
natives or alive options, one more onerous than the other. ln Magan ·
lal's case, the Court pointed out : (l-)
"The statute itself is the two classes of cases before us
clearly lays down the purpose behind them, that is pre-
mises belonging to the Corporation and the Government
should be subject to speedy procedure in the matter of
evicting unauthorised persons occupying them. This is a
sufficient guidance for the authorities on whom the power
D has been conferred. With such an indication clearly given.
in the statutes one expects the officers concerned to abail
themselves of the procedures prescribed by the Acts and
not resort to the dilatory procedure of the ordinary Civil
Court. . Even normally one cannot imagine an officer
having the choice of two procedures, one which enables
him to get possession of the property quickly and the
other which would be a prolonged one, to resort to the
latter. Administrative officers, no less than the courts,
do not function in a vacuum. It would be extremely
unreal to hold that an administrative officer would in taking
proceedings for eviction of unauthorised occupants of
F Govt. property or Municipal property resort to the pro-
)
cedure prescribed by the two Acts in one case and to the "'-'
ordinary Civil Court in the other. The provisions of
these two Acts cannot be struck down on the fanciful
theory that power would be exercised in such an unrealis-
tic fashion. In considering whether the officers would be
discriminating between one set of persons and another, one
has got to take into account normal human behaviour and
not behaviour which is abnormal. It is not every fancied
possibility of lliscrimination but the real risk of
discrimination that we must take into account.
n This 1s not one of those cases where discrimi-
nation is writ large on the face of the statute. Discrimi-
(1) Magnnlalv. Munic Corporation, [1975] t S.C.R. p. 23.

)
STATE v. T. N. PETER (Krishna Tyer, J.) 299

nation may be possible but is very improbable. And
if there is discrimination in actual practice this Court
+ is not powerless. Furthermore, the fact that the Legis:
lature considered that the ordinary procedure is insuffi-
J cient or ineffective in evicting unauthorized occupants of
Govt. and Corporation property and provided a special
speedy prncedure therefor is a clear guidance for the autho- B
rities charged with the duty of evicting unauthorised
occupants. We. therefore, find ourselves unable to agree
with the majority in the Northern India Caterers' case."
- The same reasoning applies to the present situation. The Town
Planning Act is a special statute where lands have to be acquired on a
large scale and as early and quickly as possible so that schemes may
c
be implemented with promptitude. What is more, there is a specific
and purposeful provision excluding some sections of the Kerala Land
.Acquisition Act. Jn such circumstances, it is incredible that the
authority acting under the Act will sabotage Chapter VII, in parti-
cular s. 34, by resorting to the Kerala Land Acquisition Act in dero- D
gation of the express provision facilitating acquisition of lands on less
onerous terms. He functions under the Town Planning Act, needs
lands for the schemes under that Act, has provisions for acquisition
under that Act. Then would be, by reckless action, travel beyond
that Act and with a view to oblige the private owner betray the public
interest and resort to the power under the Land Acquisition Act, dis- E
regarding the non obstante provision in Sec. of the Act? Presumption
of perversity cannot be the foundation of unconstitutionality. More-
over, the expression, used in the context of s. 32, clearly does not
bear the meaning attributed to it by the counsel for the respondents.
All that it means is that when immovable property is found necessary
for the· purpose of a 'scheme' it may be acquired by the compulsory F
process written into s. 32. It is, as if there were only one option, not
two. If the scheme is to be implemented, the mode of acquisition shall
be under s. 32 and the manner of such acquisition is the same under
the Land Acquisition Act minus ss. 14, 22 and 25 thereof. A slight
reflection makes it clear that the mode prescribed is only one, and so
the theory of alternatives one of which being mere onerous than the G
-0ther, and the consequent inference of arbitrariness, cannot arise.
We overrule that argument.
We must notice, before we part with this point, the argument
of Sri Raghavan for the respondents that the existence of alternatives
is not theoretical nor chimerical but real, and proof of the pudding is II
in the eating. He pointed to one of the appeals in this batch where
the proceedings under sec. 34 of the Act were given up, the provision
300 SUPREME COURT REPORTS [1980] 3 S.C.R.

A of the Land Acqnisition Act used, and full compensation and so lati um
paid to the owner. This instance gave flesh ar.d blood to the submission
about discrimination. Shri Khader, for the trust countered this
argument by stating that because the High Court struck down the Act
+
and the land was needed. the only statute then available to the State
was the Land Acquisition Act. So, the authority was reluctantly
B constrained to notify and acquire under the Land Acquisition Act.
Had Sec. 34 of the Act been available, this step would not have been
taken and absent Sec. 34 the argument of alternatives has no basis.
We agree with this reasoning and repel the submission of arbitrary
power to pick and choose. At worst, a swallow does not rr.ake a
summer but we must warn that prodigal state action to favour some
c owner when sec. 34 has been resuscitated will be betrayal of public
interest and invalidated as mala fide even at the instance of a concer-
ned citizen. The legislature cannot be st11ltified by the suspicious
improvidence, or worse, of the Executive.

The more serious submission pressed tersely but clearly, backed
D by a catena of cases, by Shri Viswanathan merits our consideration.
The argument is shortly this. As between two owners of property.
the presence of public purpose empowers the State to take the lands
of either or both. But the differential nature of the public purpose
does not furnish a rational ground to pay more compensation fe>r one
owner and less for another and that impertiner.ce vitiates the present
E measure. The purpose may be slum clearance, flood control or hou-
sing for workers, but how does the diversity of purposes warrant pay-
ment of differential scales or quantum of compensation where no
constitutional immunity as in Art. 3!A, B or C applies? Public pur-
pose sanctions compulsory acquisition, not discriminatory compen-
sation, whether you take A's land for improvement scheme or irriga-
F
tion scheme, how can you pay more or less, guided by an irrelevance
viz. the particular public purpose? The State must act equ oily when
it takes property unless there is an intelligent and intelligible differentia
between two categories of owners having a nexus with the object,
namely the scale of compensation. It is intellectual confusion of con-
G stitutional principle to regard classification good for one purpose, as
obliteration of differences for unrelated aspects. This logic is neatly
applied in a series of cases of this Court.

It is trite that the test to rebuff Art. 14 turns of the differentia vis-
a-vis the object of the classification. In Vajarve.u Muda iar's case,(!)
H the Court took the view, (on this aspect the decision is not shown to
have been overruled) that where there is no rational relation in the
(I) P. v. Mudaliar v. Dy. Collector, [1965] 1 S.C.R. 634.
STATE v. T. N. P.ETER (Krishna Iyer, !.) 301

matter of quantum of compensation between one public purpose and A
+ another you cannot differentiate between owners. Whether you acq-
uire for a hospital or university, for slum clearance or housing scheme,
compensation cannot vary in the rate or scale or otherwise.
· "Out of adjacent lands of the same quality and value,
one may be acquired for a housing scheme under the B
Amending Act and the other for a hospital under the
Principal Act, out of two adjacent plots belonging to the
same individual and of the same quality1and value, one may
be acquired under the Principal and the other under the
Amending Act. From whatever aspect the matter is looked
at, the alleged differences have no reasonable relation c
to the object sought to be achieved.

In Durganath Sharma's case, a special legislation for acquisition
of land for flood control came up for consitntional examination.
We confine ourselves to the differentiation in the rate of compen.
sation based on the accident of the nature of the purpose where the D
Court struck a similar note. In the l'vagpur Improvement Trwt case
and in the Om Prakash case, this Court voided the legislation which
provided differential compensation based upon the purpose. In the
latter case the Court observed. :
"There can be no dispute that the 'Govt. can acquire E
land for a public purpose including that of the Mahapalika
or other local body, either under the unmodified Land
Acquisition Act, 1894, or under that Act as modified
by the Adhiniyam. If it chooses the first course, then
the land-owners concerned will be entitled to better com·
pensation including 15 % solatium, the potential value
of the land etc. nor will there be any impediment or hurdle
such as that enacted by s. 372(a) of the Adhiniyam in the
way of such land owners, dissatisfied by the Collector's
award, to approach the Court under s. 18 of that Act.
.... It is not necessary to dilate further on this point
at this matter stands concluded by this Court's decision in G
Nagpur Improvement Trust's case by the ratio of which
we bound. It will be sufficient to close the discussion by
extracting here what Sikri C.J., speaking for the Court
in Nagpur Improvement Trust's case said :
"Can the Legislature say that for a hospital land will II
be acquired at 50 % of the market value, for a school at
60 %of the value and for a Govt. building at 70 %of the
302 SUPREME COURT REPORTS [1980] 3 S.C.R.

A market value? All three objects are public purposes and
as far as the owner is concerned it does not matter to
him whether it is one public purpose or the other. Art.
14 confers an individual right and in order to justify a classi-
fication there should be something which justifies a different
treatment to this individual] right. It seems to us that
B ordinarily a classification based on the public purpose is not
permissible under Art. 14 for the purpose of determining
compensation. The position is different when the owner
of the land himself is the recipient of benefits from an
improvement scheme, and the benefit to him is taken into
consideration in fixing compensation. Can classifications
c be made on the basis of authority acquiring the land? In
other words can different principles of compensation
be laid if the land is acquired for or by an Improvement
· ::r~ust or Municipal Corporation or the Government?
It seems to us that the answer is in the negative because
as far as the owner is concerned it does not matter to him
whether the land is acquired by one authority or the other.
It is equally immaterial whether it is one Acquisition
Act or another Acquisition Act under which the land is ac-
quired. If the existence of two Acts could enable the State
to give one owner different treatment from another equally
E situated the owner who is discriminated against, can claim
the protection of Article 14."
The principle that may be distilled from these rulings and the '
basics of 'equality' jurisprudence is that classification is not permissible
for compensation purposes so long as the differentia relied on has no
F rational relation to the object in view viz. reduction in recompense.
Is it rational to pay different scales of compensation, as pointed
out by Sikri, C.J. in the Nagpur Improvement Trust case, depending on
whether you acquire for housing or hospital, irrigation scheme or
town improvement, school building or police-station? The amount
of compensation payable has no bearing on this distinction, although
G it is conceivable that classification for purposes of compensation may
exist and in such cases the statute may be good. We are unable to
discern any valid discremen in the Town Planning Act vis-a-vis
the Land Acquisition Act warranting a classification in the matter of
denial of solatium.
B We uphold the Act in other respects but not when it deals invi-
diously between two owners based on an irrelevant criterion viz. the
acquisition being for an improvement scheme. We are not to be
STATE v. T. N. PETER (Krishna Iyer, J.) 303

understood to mean that the rate of compensation may not vary or A
must be uniform in all cases. We need not investigate this question
further as it does not arise here although we are clear in our mind that
under given circumstances differentiation even in the scale of com-
. pensation may comfortably comport with Art. 14. No such circums-
tances are present here nor pressed. Indeed, the State, realising the
force of this facet of discrimination offered, expilatory fashion, both B
before the High Court and before us, to pay 15% solatium to obli-
terate the hostile distinction.

The core question now arises. What is the effect even if we read
a discriminatory design in Sec. 34? Is plastic surgery permissible
or demolition of .the section inevitable? Assuming that there is an c
untenable discrimination in the matter of compensation does the
whole of s. 34 have to be liquidated or severable portions voided?
In our opinion, scuttling the section, the course the High Court has
chosen, should be the last step. The Court uses its writ power with
a constructive design, an affirmative slant and a sustaining bent.
D
Even when by compulsions of inseverability, a .destructive stroke be-
comes necessary the court minimises the injury by an intelligent con-
tainment. Law keeps alive and "operation pull down" is de mode.
Viewed from this perspective, so far as we are able to see, the only
discriminatory factor as between s. 34 of the Act and s. 25 of the
Land Acquisition Act vis-a-vis quantification of compensation is the E
non-payment of solatium in the former case because of the provision
in s. 34(1) that s. 25 of the Land Acquisition Act shall have no appli-
cation. Thus, to achieve the virtue of equality and to eliminate the
vice of inequality what is needed is the obliteration of s. 25 of the
Land Acquisition Act from s. 34(1) of the Town Planning Act. The
whole of s. 34(1) does not have to be struck down. Once we excise F
the discriminatory and, therefore, void part in· Sec. 34(1) of the Act,
equality is restored. The owner will then be entitled to the same
compensation, including solatium, that he may be eligible for under
the Land Acquisition Act. What is rendered void by Art. 13 is only
to the extent of the contravention of Art. 14. The lancet of the Court
may remove the offending words and restore to constitutional health G
.,,,; the rest of the provision. .

We hold that the exclusion of Sec. 25 of the Land Acquisition Act
from sec. 34 of the Act is unconstitutional but it is severable and we
sever it. The necessary consequence is that s. 34(1) will be read omit-
ting the words 'and s. 25' . What follows then? Section 32 obli- H
gates the state to act under the Land Acquisition Act but we have struck
down that part which excludes sec. 25 of the Land Acquisition Act
304 SUPREME COURT REPO'.RTS [1980] 3 S.C.R.

A and so, the 'modification' 'no longer covers s. 25. It continues to apply
to the acquisition of property under the Town Planning Act, Section
34(2) provides for compensation exactly likes. 25(1) of the Land Acqui-
+
sition Act and, in the light of what we have just decided, s. 25(2) will
i
also apply and "in additi9n to the [market value of the land as above
provided, the court shall in every case award a sum of fifteen per cen
B tum on such market value in consideration of the compulsory nature
of the acquisition!'
The upshot of this litigation thus is that the appeal must be allo-
wed except to the extent that solatium shall be payable as under the
Land Acquisition Act. Since the State has always been willing to
c pay that component and has repeated that offer even before us right
from the beginning, we direct the parties to bear their respective
costs,

P,B.R, Appeal allowed.

''y'