V.K. Bali, C.J.
1. The case has rather a checkered history. It has its roots from a notification issued under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as 'Act of 1894', on 7.1.1981. The land belonging to the appellant (petitioner in the original lis) and others was acquired for a public purpose, namely for construction of a Sports Stadium. The petitioner objected to the proposal of acquisition on variety of grounds, his primary objection being that his land was not required for stadium as large extent of land was available in and around the proposed area. The notification issued in 1981 was, however, not taken to its logical ends for long time and the petitioner in 1986 filed O.P.No.6498 of 1986 challenging the proposal to acquire his land. The Original Petition of the petitioner came up for hearing along with other connected matters and the same was dismissed vide order dated 9.2.1996. In the meanwhile, the notification under Section 4 of the Act lapsed. The Government, however, issued a fresh notification on 4.11.1998. Aggrieved, the petitioner filed O.P.No. 10873 of 1999 reiterating the grounds taken by him while challenging the notification dated 7.1.1981. Learned Single Judge before whom the Original Petition came up for hearing, remitted the matter to the Government directing the Revenue Divisional Officer, Palakkad, the 3rd respondent herein, to consider the objections filed by the petitioner, Ext.P2. The petitioner was also permitted to file additional representation. It is the case of the petitioner that the learned Judge directed the Government even to take note of the contention that his land was not required for the purpose for which it was notified. The Revenue Divisional Officer, however, rejected the objections and the additional representation filed by the petitioner, thus, constraining the petitioner once again to file a fresh Original Petition bearing No.28871 of 2000. Meanwhile, however, the petitioner challenged the judgment of the learned Single Judge remitting the matter to the Government before a Division Bench, which was disposed of by order Ext.P2. During the pendency of the appeal aforesaid, the petitioner made an application for appointment of Commission, which was allowed and advocate Smt. Daisy Thampy was appointed as Advocate Commissioner to inspect and report about various relevant aspects so as to enable the Court to have a correct appraisal and assessment of the situation and take a correct decision on the contention raised by the petitioner. Advocate Commissioner submitted report, Ext.P3 along with a plan, Ext.P4. The Division Bench by judgment Ext. P2 directed the Government to consider the detailed representation to be made before the Government. The petitioner was permitted to incorporate the factual findings of the Advocate Commissioner. The petitioner did file a representation on the basis of Division Bench judgment, Ext.P2, and also an additional representation.
2. Learned Single Judge before whom the matter came up for hearing but for one, repelled all contentions raised in the Original Petition challenging the order of the Government rejecting the representation pursuant to the directions already given by the Single Judge and Division Bench as mentioned above. The only contention that was accepted was that order Exhibit P1 passed by the Government was cryptic and that the directions given by this Court in judgment Exhibit P2 were not taken into consideration, in particular for exclusion of the property from acquisition of the ground that the same was not at all necessary for the stadium purposes. In view of the findings of the learned Single Judge that the impugned order was non-speaking without taking into consideration the plea raised by the petitioner, particularly with regard to the requirement of his land for public purpose, the land acquisition authorities were directed to examine the issue afresh and to that limited extent the petition was allowed vide order dated 28th October, 2005. It is this order which has been challenged in the present Writ Appeal.
3. Mr. V.R. Venkitakrishnan, learned Senior Counsel contends that the petitioner has suffered a protracted litigation spanned over a period of 25 years and once there was sufficient material in the record, the learned Single Judge would have better decided the controversy in issue himself instead of relegating the petitioner to have the issue decided by the Revenue Divisional Officer. On the basis of material placed on record, inclusive of the Advocate Commissioner's report, learned Counsel states that the petitioner had a cast iron case and a finding ought to have been rendered to the effect that his property was not required for the purpose for which notification was issued. He further contends that as per the Scheme notified under the Town Planning Act, the petitioner's property was earmarked as a residential area and, therefore, unless the Scheme was amended, the proposal to acquire the property for non-residential purpose, i.e., establishment of the Stadium, would be illegal. It is further urged by counsel that once a Scheme has been notified earmarking the area for residential purposes, to have change in the land use, consent from the Government is required under Sections 14 and 15 of the Madras Town Planning Act, 1920. The learned Counsel also relied upon a certificate dated 21.8.2006 issued by R.Dasanpotty, Superintending Engineer, P.W.D. (Retired), engaged by the petitioner.
4. We would deal with the second point first. In view of the provisions contained in Section 12 of the Act aforesaid, the Government would, in respect of any Municipality, after making such inquiry as they deem necessary, by notification in the Official Gazette, require the council, before a fixed date, to prepare, publish and submit for their sanction a draft scheme, as respects any land in regard to which a town planning scheme is to be made. Section 13 deals with contents that would be given in the draft scheme. Section 14 deals with sanctioning of scheme by State Government. The Scheme, after objections having been received and dealt with, as passed or adopted by the Council shall be submitted to the State Government for sanction. The Government, after considering the objections and suggestions, if any, and after making such inquiry, a they think fit, would sanction the scheme the scheme with or without modification. In view of the provisions contained in Section 15 of the Act aforesaid reproduced below, a Town Planning Scheme sanctioned under Section 14 may, at any time, be varied or revoked by a subsequent scheme published and sanctioned in accordance with the Act, if the State Government may concur with the same:
15. Variation or revocation of schemes: (1) A town planning scheme sanctioned under Section 14 may at any time be varied or revoked by a subsequent scheme published and sanctioned in accordance with this Act.
Provided that the municipal council shall be competent to modify a scheme after it has been sanctioned by the State Government under Section 14 by an agreement entered into with the persons interested in the scheme and with the concurrence of the State Government.
(2)(a) The State Government may, at any time, by notification in the Official Gazette, vary or revoke a scheme sanctioned under Section 14.
(b) Before issuing such notification the State Government shall publish in the prescribed manner a draft of such notification together with a notice specifying a date on or after which such draft will be taken into consideration and shall consider any objection or suggestion which may be received in respect of such draft from the council or any person affected by the scheme before the date so specified.
5. We have given our anxious thoughts to the contention of the learned Counsel noted above, but do not find any substance therein. It may be true that a Scheme once sanctioned if needs modification, variation or revocation, would need consent of the Government, but present is not a case where the council may be requiring change in the Scheme made by it earmarking the area of the petitioner as a residential one. The present is rather a case where the Government had decided to acquire the land, when the Government may require land for any public purpose, all Schemes made by the local authorities, be it a Municipality, Corporation or Panchayat or any other local body, would come to an end. The Government has absolute power to acquire a land for a public purpose. In the present case, the land had only been earmarked for residential purposes. We are of the view that even if the land had actually been utilised for residential purposes, but when the same is required for a public purpose, it may not make any difference and the State Government could yet acquire the land with construction made thereon and the only right of the citizen is to receive compensation. It is not unknown that complete townships had been acquired when a Government needed the land for a public purpose. One such example is acquisition of land for Gobind Sagar Dam in Punjab where the entire Bilaspur Township has come under the water.
6. The Honourable Supreme Court in Jai Narain v. Union of India, : AIR1996SC697 examined a similar point. The contention raised before the Honourable Supreme Court was that the land in dispute was shown in the Master Plan and Zonal Development Plan as agricultural green whereas it was being acquired for the public purposes of setting up the STP and, therefore, the acquisition was contrary to the Master Plan and the Zonal Development Plan. The said contention was repelled by observing that:
So far as the second contention raised by Mr. Vashisht, the same is mentioned to be rejected. Whatever may be the user of the land under the Master Plan and the Zonal Development Plan the State can always acquire the same for public purpose in accordance with law of the land.
In Bhagat Singh v. State of U.P. : AIR1999SC436 , once again while dealing with a similar contention the Honourable Supreme Court held that:
As pointed out in the above judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made.
7. The learned counsel, in support of his first contention, referred to the report of the Advocate Commissioner and the plan made by her. Before we may deal, if at all, with the material referred by learned Counsel as mentioned above, we may mention that all the properties on the north and south immed'ately abutting the land of the petitioner have since been acquired. It is only the land of the petitioner which has not been taken possession of because of Court directions as mentioned above. Counsel has referred to the finding of the Advocate Commissioner under the caption 'Vacant Land'. Under the caption aforesaid, it is mentioned as follows:
About 4.85 acres of land already acquired is lying vacant surrounding the gallery. On the eastern side of the Kalmandapam road and extent of 4.08 acres of land is also lying vacant. Out of this, 3.50 acres is being used for the temporary Municipal Bus stand.
From the site plan prepared by the Advocate Commissioner, it is pointed out that there is a road in between the Stadium and the property of the petitioner and there is no possibility to put for any use the land of the petitioner across the road. It is further pointed out from the site plan that on the eastern side of the stadium, there is a vacant land measuring 4.08 acres and if the respondent intends to make a car parking area, the said area can be utilised. Learned Counsel for the respondent, however, contends that there is a big serviceable existing road in between the Stadium and the 4.08 acres vacant land on the eastern side of the Stadium and the vacant land cannot possibly put to the use of car parking. The road on the western side in between the Stadium and the property of the petitioner has been abandoned. The said area is not to be used as road as per the revised plan and further that all properties located on the north and west of the property of the petitioner have already been acquired and possession has already been taken. The area alone can be put to car park, contends learned counsel.
8. If, learned Counsel for the appellant might have made out a sure case that the property of the petitioner is not required, we would have dealt with the issue. From the material relied upon, no definite finding can be recorded and any discussion on the matter is likely to prejudice either of the parties. The Certificate issued by R. Dasanpotty, Superintending Engineer, P.W.D. (Retired) would also not clinch the issue particularly when it has been given by a person engaged by the petitioner. It would not be proper, thus, for us to record a finding and we are of the view that the learned Single Judge, rightly, relegated the petitioner to press his case with regard to non-requirement of his land for the Sports Stadium before the land acquisition authority.
Finding no merit in this appeal, we dismiss the same leaving, however, the parties to suffer their costs.