JUDGMENT

Ratnam, J.

1. These Writ appeals have been preferred by the State of Tamil Nadu and two others against the Common judgment in W.P No. 119 and 120 of 1974 allowing the writ petitions filed by the respondents herein praying for the issue of a writ of certiorari to quash a notification published under S. 18(I) of the Tamil Nadu Land Reforms Act, 1961 (hereinafter referred to as the ‘Land Ceilings Act’) and for the issue of a Writ of Mandamus to proceed with the acquisition of the lands, of an extent of 411.04 acres already notified, under the provisions of the Land Acquisition Act, 1894.

2. The circumstances giving rise to the writ appeals are as under: The first respondent in these appeals is a Private Limitted Company, of which the second respondent is the Managing Director. Large extents of land situate in the villages of Andipatti, Pudhachchu, Balasamudram and A. Kalayamputthur were owned by the respondents. We are concerned in these appeals with the extent of 253.31 acres in Balasamudram village and 157.73 acres in Pudhachchu village, which formed part of the lands owned by the respondents. Consequent upon the introduction of the Land Ceilings Act, 1961, the respondents applied for and obtained permission from the Land Board for the retention of an extent of 1719.42 acres for the purpose of dairy farming and livestock breedings. The Land Ceiling Act came to be subsequently amended by Amending Act 17 of 1970, which came into force on 15th February, 1970 and was also published in the Gazette on 23-6-1970. The notified date for the purpose of S. 8(1) of the Land Ceiling Act was fixed as 2nd October, 1970 and there was a reduction in the ceiling are from 3D standard acres to 15 standard acres, By proceedings in B.P No. 199 dated 16th November 1970, the Land Board revoked the permission granted to the respondents to retain an extent of 721.43 acres for dairy farming and livestock breeding on the ground that the respondents had raised paddy and other crops, contrary to the terms of the permission granted by the Land Board. This led to the filing of W.P No. 2375 of 1971 and the obtaining of an order of injunction in W.M.P No. 3633 of 1971, dated 31st August, 1971 restraining the taking of possession of an extent of 721.45 acres, in respect of which permission was revoked. By yet another communication in proceedings No. 447.LB/71-2, dated 6th March, 1972, the respondents were called upon by the Land Board to show cause why the permission for the retention of an extent of 527.49 acres granted already should not also be revoked. The respondents thereupon filed another writ petition in W.P No. 992 of 1972 and obtained orders of injunction with reference to this extent also. Subsequently by Amending Act 39 of 1972 the Land Ceiling Act was amended and the date of commencement of the Act occurring in S. 3(11) of the Principal Act was stated to be 1st March 1972. This Act was published in the Gazette on 21st December, 1972 and the notified date for the purpose of S. 8(1) of the Land Ceilings Act was to be a date later to the publication in the Gazette. Owing to the omission in the amending Act of S. 13(1)(ii) 26, 27, 28 and 73(x) of the Principal Act, the exemption granted in favour of the respondents for the retention of the lands for the purpose of dairy farming or livestock breedings, was no longer available. Consequent upon the introduction of the aforesaid amendments in the Land Ceilings Act deleting the exemption provisions, W.P No. 2375 of 1971 and W.P No. 992 of 1972 filed on the basis of the exemption clause in the Land Ceilings Act, as it originally stood, were dismissed as having become infrastructure on 19th March, 1973. and 27th March, 1967 respectively. Purporting to act under the provisions of the Land Ceilings Act, as subsequently amended, a draft statement was published under S. 10(1) of the Land Ceilings Act, proposing to declare an extent of 721.45 acres as surplus. Thereupon, the respondents herein filed W.P No. 2867 of 1973, which was entertained and interim stay of further proceedings was also granted.

3. Meanwhile, in G.O.Ms No. 2009, Public Works Department, dated 6th October, 1970, the State formulated and sanctioned an irrigation scheme known as ‘The Palar-Porunthalar Dam Scheme’. In that connection, the Government decided to acquire the lands belonging to the respondents in Balasamudram and Pudhachchu villages. In accordance with the decision to so acquire the lands for that irrigation project, the Executive Engineer, Public Works Department, Palani Division entered upon a total extent of 5.98 acres situate in S. Nos. 470/1, 409 and 410 in Pudhaehehu village on 23rd December, 1971 and 1st March, 1972 and started construction of the Dam. By a communication, dated Na.Ka 11862. dated 6th April, 1972, the Tahsildar, Palani, informed the respondents that as the Public Works Department had entered upon the aforesaid lands, the respondents should not cultivate those lands. Owing to the taking of possession of the extent of land as aforesaid and the commencement of the work relating to the dam, the lands situate behind the Dam site became inaccessible, according to the respondents, and an extent of 253.31 acres in Balasamudram village and 157.73 acres in Pudhachchu villages were submerged under water and those lands were virtually taken over by the Public Works Department. By a series of notifications under S. 4(1) of the Land Acquisition Act, dated 4th April, 1972, 12th April 1972, 3rd May 1972, 10th May 1972 and 3rd October, 1973 the Government notified their intention to acquire an extent of about 412 acres of lead in Balasamudram and Pudhachchu villages belonging to the respondents herein for the purpose of providing water spread area for Palar-Porunthalar Dam. After the issue of enquiry notices to the respondents under S. 5-A of the Land Acquisition Act, an enquiry was held, at which the respondents appeared before the concerned Land Acquisition Officer and gave statements agreeing to the acquisition of the lands proposed to be acquired and praying for payment of fair and adequate compensation. According to the respondents, the further steps under the Land Acquisition Act were not pursued; but instead, a draft statement under S. 10(1) of the Land Ceilings Act was published on 25th April, 1973 proposing to declare an extent of 721.45 acres belonging to the respondents as surplus. By means of another notification, dated 15th August 1973, another draft statement was published proposing to declare a further extent of 954.44 acres as surplus. On objections being raised by the respondents to the draft statements, an enquiry was held and it was proposed to issue a final statement granting exemption in respect of an extent of 32.17 acres and excluding an extent of 60 acres to be retained by the respondents and to declare an extent of 1643, 72 acres as surplus. A statement under S. 12 of the Land Ceilings Act was published in the Gazette on 19th December 1973 with a slight modification, in that, the respondents were allowed to retain 54 acres, being the equivalent of 15 standard acres and the surplus extent shown as 1649.72 acres. In this extent of 1649.72 acres proposed to be treated as surplus, it included the extent of 411 acres, regarding which the Government had already taken proceedings under S. 4(1) of the Land Acquisition Act and bad also conducted an enquiry under S. 5A of that Act. Even out of this, an extent of 230.09 acres was the subject matter of the cancellation of the permission earlier granted by the Land Board, with reference to a total extent of 721.45 acres and the rest was not in any manner affected by the cancellation order.

4. In the aforesaid circumstances, respondents 1 and 2 herein filed W.P No. 119 of 1974 praying for the issue of a writ of mandamus forbearing the respondents from taking steps including the publication of a notification under S. 18(1) of the Land Ceilings Act pursuant to the final statement published under S. 12 of the Land Ceilings Act in the Gazette on 19th December, 1973. Their case was that consequent upon the issuance of the statement under S. 12 of the Land Ceilings Act, necessary steps for publishing a notification under S. 18(1) of the Land Ceilings Act would be taken and if such a notification was allowed to be published, then, the surplus of 1649. 72 acres, inclusive of the 412 acres proposed to be acquired under the provisions of the Land Acquisition Act, would vest in the Government, which would result in setting at naught the acquisition proceeding launched earlier under the provisions of the Land Acquisition Act, in respect of those 412 acres of land. This was characterised as a colourable exercise of power to avoid payment of compensation under the Land Acquisition Act with a view to make available a meagre compensation under the Land Ceilings Act. It was also stated that acquisition of land by resorting to the Land Ceilings Act for purposes of the irrigation scheme would not enjoy the protection under Article 31A of the Constitution of India, but would be violative of fundamental rights under Articles 19 and 31 of the Constitution of India, The further case of the respondents was that the State had at its choice two instruments for acquisition of lands, which, in the absence of guidelines, could be applied by it at its sweet will and pleasure resulting in patent discrimination. The respondents also put forth the plea that the provisions of the Land Ceilings Act could not be applied to the land in question, as after the entry of the Public Works Department on 1st March 1972, they ceased to be agricultural lands. The respondents therefore prayed for the issue of a writ of mandamus on the grounds stated above. However, it so happened that on the day when W.P No. 119 of 1972 was filed by the respondents herein, the publication of the notification under S. 18(1) of the Land Ceilings Act, which was sought to be prevented by the respondents, was made and thereupon the respondents obtained an amendment of the prayer, in W.P No. 119 of 1974, into one for the issue of a Writ of certiorari to quash the notification under S. 18(1) of the Land Ceilings Act. The respondents herein also filed W.P No. 120 of 1974 praying for the issues of a Writ of Mandamus to the State of Tamil Nadu and the Land Acquisition Officer to direct them to proceed with the acquisition of 411.04 acres under the provisions of the Land Acquisition Act and to complete the acquisition proceedings already taken.

5. In the counter affidavit filed by the appellants, they stated that as on the date of commencement of the Land Ceilings Act, 1961, the respondents held an extent of 1733.89 ordinary acres and out of that an extent of 1719.42 acres was allowed to be held by them, by virtue of the exemption granted under S. 27 of the Land Celings Act and as the balance left was negligible, further action was dropped. The exemption so granted, according to the State, was confined to 997.97 ordinary acres, owing to violation of the conditions upon which the exemption was granted by proceedings, dated 16th November, 1970. Consequent upon the withdrawal of the exemption, an extent of 721.43 acres was shown as surplus land in the draft statement under S. 10(1) of the Land Ceilings Act in the holdings of the respondents and when that statement was about to be published, W.P No. 2375 of 1971 was filed and an interim injunction, was granted, as a result of which, the statement under S. 10(1) could not be published. After the dismissal of the Writ petition, the draft statement under S. 10(1) of the Act declaring 721.45 acres as surplus was published in the Gazette on 25th April, 1973. By another order dated 6th March, 1972, the Land Board proposed to revoke the exemption granted in respect of an extent of 997.97 acres and again, owing to the filing of W.P No. 993 of 1972 and its subsequent dismissal, another draft statement under S. 10(1) of the Land Ceilings Act came to be published in the Gazette on 15th August 1973, allowing the 1st respondent to retain 60 acres of land equivalent to 15 standard acres and declaring an extent of 954.44 ordinary acres as surplus. The further case of the appellants was that the draft statement, dated 25th April, 1973 and 15th August, 1973 were served on the first respondent, who filed some objections and after holding an enquiry, orders were passed permitting the 1st respondent to hold 15 standard acres, the balance of 516.63 standard acres, being shown as surplus. While so doing, the objection raised by the respondents that the extent of 413.37 acres in Pudhachchu and Balasamudram Villages had been taken possession of by the Government for the construction of Palar-Porundhalaj Dam under the Land Acquisition Act and therefore that extent should be exempted from the declaration of surplus, was negatived. The appellants thus stated that the aforesaid extents of lands were declared surplus and were also notified under S. 18(1) of the Land Ceilings Act; but taking of possession had to be kept in abeyance owing to the orders of stay.

6. With reference to the proceedings under the Land Acquisition Act relating to palar Porunthalar Dam, the appellants stated that the scheme was sanctioned and requests for acquisitions of land for the irrigation project were sent and three Special Tahsildars were appointed and the lands notified for acquisition included the extent of 411.04 acres in Pudhachehu and Balasamudram Villages belonging to the respondents herein. They accepted that the notification under S. 4(1) of the Land Acquisition Act bad been made and the enquiry under S. 5A of the Act was also held and that the draft declarations under S. 6 of that Act had also been sent to the Government, which were approved and published in respect of four blocks and were awaiting approval for three blocks, The appellants admitted having taken possession of some of the lands with the consent of the first respondent, out of which, an extent of 157.73 acres belonged to the 1st respondent. They also accepted that the third appellant had entered upon the lands of an extent of 5 acre and 88 cents belonging to the 1st respondent on 25th December, 1971 and 1st March, 1972 for the construction of the Dam. The possession of the other extents of lands, according to the appellants, was taken on 15th July, 1971. 25th December, 1971, 1st March, 1972 and 25th April, 1972, after the amending Act 17 of 1970 came into force. The appellants contended that the surplus lands under S. 18(3) of the Land Ceilings Act vested in the Government with effect from the date of commencement of that Act and as the land acquisition proceedings initiated already had not been completed, those proceedings could not stand in the way of the vesting of the lands in the Government under the provisions of the Land Ceilings Act. The withdrawal of the exemption in respect of 230.09 acres, which was included in the extent of 411.04 acres proposed to be acquired, did not have any impact on the vesting of the entire extent of surplus land in the Government, according to the appellants. The appellants further pleaded that the proceedings under the Land Acquisition Act initiated already in respect of 411.04 acres did not in any manner affect the right of the Government to proceed to take over the surplus land under the provisions of the Land Ceilings Act, as amended by Act 17 of 1970 and Act 39 of 1972, and that the proceedings, under the aforesaid enactments, cannot be clubbed together. Having regard to the commencement of the acquisition proceedings, which were initiated after the commencement of Act 17 of 1970 and Act 39 of 1972, those proceedings were stated not to have any bearing upon the determination of the surplus lands belonging to the 1st respondent. The appellants further contended that the respondents cannot say that the extent of 411.04 acres should be taken over by the Government only by resorting to proceedings under the Land Acquisition Act and not in the shape of surplus lands in excess of the ceiling area vested in the Government under the provisions of the Land Ceilings Act. The colourable exercise of power attributed to the State by the respondents for taking over the surplus lands was denied by the appellants. The appellants disputed the taking over possession of the lands in the acquisition proceedings and claimed that the respondents cannot therefore say that the acquisition proceedings should be continued till its end under the Land Acquisition Act. The publication effected under S. 18 of the Land Ceilings Act of the surplus lands did not suffer from any error and the appellants therefore claimed that it was not liable to be quashed. Similarly, the appellants also put forth the plea that the respondents cannot insist upon the acquisition proceedings being pursued without any break. On these grounds, the appellants prayed for the dismissal of the writ petitions.

7. Natarajan, J., who heard the Writ petitions, held that notwithstanding the Land Ceilings Act, as amended by Act 17 of 1970, the appellants had considered it fit to acquire under the Land Acquisition Act 411.04 acres belonging to the 1st respondent for the construction of the Dam and had also taken possession of that extent after obtaining the consent of the 1st respondent and after doing so, the Government cannot turn round and say that they need not proceed with the acquisition of the lands; but can resort to the provisions of the Land Ceilings Act to take hold of the lands as surplus lands. Averting to the Preamble and objectives of the Land Ceilings Act as well as the Land Acquisition Act, the learned Judge was of the view that the first appellant cannot acquire under the provisions of the Land Ceilings Act, lands needed for an irrigation project and that as the Government had, after coming into force of the provisions of the Land Ceilings Act, as amended, notified an extent of 411.04 acres for acquisition under the provisions of the Land Acquisition Act, treating that extent as belonging to others, the Government was under an obligation to pay compensation as provided under the Land Acquisition Act. To permit the acquisition of lands for the purpose of an irrigation scheme under the provisions of the Land Ceilings Act was held to amount to a colourable exercise of the powers by the Government under the Land Ceilings Act. Referring to S. 48 of the Land Acquisition Act, the learned Judge found that the Government had taken over possession of the lands by direct and indirect means and that therefore, S. 48 of the Land Acquisition Act enabling the dropping of proceedings prior to the taking of possession would not be available to the Government. Adverting to the stand of the appellants that on and from the coming into force of the Land Ceilings Amendment Act 17 of 1970 with effect from 15th February, 1970 the surplus lands automatically vested in the Government, the learned Judge was of the view that only on the publication of the notification under S. 18(1) of the Land Ceilings Act, the surplus lands would vest in the Government and not before, and therefore, at the time of the initiation of the proceedings under the Land Acquisition Act, the surplus lands did not vest in the Government. The reliance placed by the Government upon the proviso to S. 6(1) of the Land Acquisition Act to nullify the effect of the notification under S. 4(1) of that Act was not accepted and it was held that the proviso had been introduced only as a means of check on the Government and not to enable the Government to take over under that provision and disown its obligation under the Land Acquisition Act. Considering the argument that when once the exemption provision under the Land Ceilings Act had been withdrawn, the surplus land in the hands of the respondents automatically became available for acquisition, the learned Judge pointed out that the surplus was entitled to be treated as property belonging to the respondents and they were also well within their right in insisting upon the acquisition of that land by the Government. On these conclusions, the learned Judge allowed the petition in W.P No. 119 of 1974 with reference to the inclusion of an extent of 411.04 acres only in the notification published under S. 18(1) of the Land Ceilings Act and allowed W.P No. 120 of 1974, directing the continuance of the acquisition proceedings under the Land Acquisition Act regarding the extent of 411.04 acres, in respect of which, such proceedings had earlier been launched by the Government. It is the correctness of this that is challenged in these appeals.

8. The learned Additional Government Pleader first contended that possession of an extent of 411.04 acres had not been taken by the Government and that in any event, possession of those lands, even if taken, was not pursuant to an award passed under the provisions of the Land Acquisition Act, or, under S. 16 or S. 17(1) thereof and therefore, it was open to the Government to drop the acquisition proceedings in view of S. 48 of the Land Acquisition Act, and as such, the respondents cannot compel the continuance of the further proceedings in accordance with the provisions of the Land Acquisition Act. Strong reliance in this connection was placed by the learned counsel for the appellants upon the decision in Jetmull Bhojraj v. State of Bihar A.I.R 1972 S.C 1363.. On the other hand, the learned counsel for the respondents submitted that the State had entered upon and taken possession the extent of land in question and had also started the construction of the Dam and that prevented the respondents from having effective possession of the lands, as they were submerged under water spread area of the Dam. Referring to the counter affidavits filed, learned counsel pointed out that practically the appellants have admitted having taken possession and cannot therefore now be heard to contend that possession had not been taken. Learned counsel further pointed out that taking of possession may be pursuant to an award, or, possession may also be voluntarily given and taken and in either event, it would result in possession being taken by the Government, and therefore, there is no question of the Government being permitted to resile from the acquisition proceedings pursuant to S-48 of the Land Acquisition Act. The decision relied on was also stated to be inapplicable on the facts of this case.

9. We may now proceed to consider the question whether possession of 411.04 acres was taken by the Government or not. Admittedly, with reference to an extent of about 5 acres and 88 cents situate in S. Nos. 407/1, 409 and 410, there eannot be any dispute, for, even in the counters filed by the appellants, they had admitted entering upon those lands on 23rd December, 1972 and 1st March, 1972, respectively. Further, in para 9 of the counter affidavit filed in W.P No. 119 of 1974, the respondents had stated that the Executive Engineer, Public Works Department has already taken possession of some of the lands with the consent of the respondents, out of which, an extent of 157.73 acres belonged to the 1st respondent. This again amounts to clear admission of taking of possession by the Government. It is also seen therefrom that on 15th Jane, 1971, 25th December, 1971, 1st March, 1972 and 25th April, 1972 possession of the lands had been taken. We may state that according to the case of the respondents, owing to the entering upon and taking possession of lands by the Government for the purpose of carrying on the work in connection with the construction of the Dam, the rest of the lands also were under the effective control of the Public Works Department, and the respondents did not have any access nor could they cultivate the same or put them to use for agricultural purposes. This is found in para 11 of the affidavit in W.P No. 119 of 1974. Again in para 18(D) of the affidavit in W.P No. 119 of 1974, the respondents have stated that the Public Works Departments entered into the lands in question on 1st March, 1972 rendering the entire extent incapable of being used for agricultural purposes. With reference to the stands so taken by the respondents, the appellants stated, as noticed earlier, that possession of an extent of 157.73 acres had been taken with the consent of the 1st respondent. It is also significant tbat in para 6 of the counter affidavit filed in W.P No. 120 of 1974, the appellants had stated that the respondents have left these lands fallow, though they would admit that preliminary construction work had been carried on in the lands. It is difficult to accept that vast extents of agricultural lands, if in the possession of the respondents, had beea left fallow. We are of the view that if, as the appellants claim, the lands had not been cultivated, it was only on account of the submersion of the lands upon possession having been taken by the Government and the carrying on of the work connected with the Dam. We may also refer to the reply affidavit filed by the respondents in W.P No. 119 of 1974, where, in para 12, they have reiterated that possession of the lands had been taken by the Government. The stand taken by the respondents in the course of the proceedings under the Land Ceilings Act, is also to the effect that an extent of 411.04 acres had been taken possession of by the Public Works Department and those lands should be excluded for the purpose of computing the holding. The respondents have also drawn attention to the fact that the entire extent of 411.04 acres under the control of the appellants, would eventually become the water spread area for the Dam and that most of the extent is already under water rendering the lands unfit for cultivation. The possession by the Government and control of the entire extent of land since 1st March, 1972 had been reiterated in the reply affidavit filed by the respondents. We may point out that the appellants have not clearly and categorically refuted the taking possession of the entire extent of land. Though the appellants would generally state that other lands are still in the possession of the respondents, they have not detailed what those lands are. We may also observe that despite several opportunities given to the appellants, to place before the Court notices, if any, under S. 9(1) of the Land Acquisition Act with reference to a particular survey number or area, they were not produced. Nor was any material placed before Court to clearly make out that the Government had not taken possession of the entire extent of the lands or any part of it. From the affidavits and counter affidavits, it is clear that possession of the entire extent of the lands had been taken over by the Government. In the absence of materials contra, we agree with the conclusion of the learned Judge that having regard to the situation of the lands, which had admittedly been taken over by the Government and the admitted carrying on of the preliminary work relating to the construction of the Dam, the entire extent of 411.04 acres was reduced to the I possession and control of the Government.

10. We may now consider whether it is open to the Government to drop the proceedings already initiated under the provisions of the Land Acquisition Act, by resorting to S. 48 of that Act. S. 48(1) provided that excepting in a case provided for in S. 36, the Government shall be at liberty to withdraw from the acquisition any land of which possession has not been taken. We have earlier found that the Government had taken possession of the lands in question. Whether the withdrawal from acquisition proceedings under S. 48(1) of the Land Acquisition Act is confined only to case where possession by the Government is taken after an award, as contended by the learned Additional Government Pleader, is the question. Ordinarily, after the making of the award, under S. 16 of the Act, the Collector, may take possession of the land. S. 17(1) provides for cases of urgency, when, though no award as such had been made, possession of the properties can be taken. Though cases of taking possession may broadly fall into the aforesaid two categories, it is not impossible to conceive of a situation, where the owners of the land proposed to be acquired, being convinced of the genuineness of the purpose of acquisition as well as its urgency, may be willing to place the lands proposed to be acquired in the possession of the Government without driving the Government to resort to passing of an award under S. 11 or to invoke the urgency provision under S. 17 of the Land Acquisition Act. Can it be said that in such cases, the Government had not entered into possession of the land at all? We are of the view that taking of possession by the Government of the lands proposed to be acquired can also result from the owner of the land giving up possession to the Government. It is the factum of possession and not the mode by which such possession is obtained, that is relevant for purpose of S. 48 of the Land Acquisition Act. Under those circumstances, we cannot agree with the contention of the learned Additional Government Pleader that only in cases where possession of the acquired lands is taken over by the Government under S. 16 after award, or, under S 17(1), the further proceedings can be dropped under S. 48(1) of the Land Acquisition Act and not in other cases. In this case, even in the course of the enquiry conducted under S. 5A of the Land Acquisition Act, the respondents have consented to the acquisition and had prayed for the payment of compensation. We have already found that the Government had taken possession of the lands is question. Though it may be that the taking of such possession was not after the passing of an award under S. 16, or, under S. 17(1) of the Act we are of the view that the Government had taken effective possession of the entire 411.01 acres and that would prevent the Government from resorting to the withdrawal of the acquisition proceedings under S. 48(1) of the Act. We have carefully considered the decision in Jetmull Bhojraj's case relied on by the learned Additional Government Pleader. We are unable to understand that decision on laying down that possession of the lands proposed to be acquired can be taken by the Government only after the passing of an award under S. 16, or, under S. 17(1) of the Land Acquisition Act and not in any other method. We therefore hold that it is not open to the first appellant now to retrace its steps with reference to the proceedings already initiated under the provisions of the Land Acquisition Act and to withdraw those proceedings, in accordance with S. 48(1) of the Land Acquisition Act.

11. Learned Additional Government Pleader made a feeble attempt to contend that even on the coming into force of the Land Ceilings Act, as amended by Act 17 of 1970, the surplus lands of the respondents vested in the Government. We are unable to agree. Though under S. 7 of the Land Ceilings Act, it is provided that no person shall, on and from the date of commencement of that Act, hold lands in excess of the ceiling area, there is no provision for any automatic vesting of the surplus land in the Government. There is an elaborate machinery provided under the Act to compute the ceiling and to declare surplus. Under S. 18(3) of the Act, only on the publication of the notification under S. 18(1) the surplus lands specified in the notification shall be deemed to have been declared as acquired for a public purpose and vest in the Government free from all encumbrances with effect from the date of such publication and the right, title and interest of all persons in such lands with effect from the said date, be deemed to have been extinguished. We have earlier noticed how the notifications under S. 18(1) of the Land Ceilings Act pursuant to the draft statements published on 25th April, 1973 and 15th August, 1973., were actually published only on the date when W.P No. 119 of 1974 was filed, which also led to the amendment of the prayer sought therein. We therefore hold that there was no vesting of the surplus lands prior to the publication of the notification under S. 18(1) of the Land Ceilings Act and that the appellants can not claim that the lands fn question belonged to the Government and there was no necessity whatever for the continuance of the proceedings commenced earlier under the Land Acquisition Act.

12. We may now advert to the effect of initiation of proceedings under the Land Acquisition Act, long prior to the issue of the notification under S. 18(1) of the Land Ceilings Act. From the dates already mentioned, it is clear tbat the initiation of the proceedings under the provisions of the Land Acquisition Act was subsequent to the commencement of the Land Ceilings Act, though prior to the notification under S. 18(1) of the Land Ceilings Act. When the notifications under S. 4(1) of the Land Acquisition Act in respect of the lands in question were issued, the Government resorted to these provisions, treating the subject matter of the acquisition as not belonging to itself, but as belonging to the respondents herein. In State of Madras v. Parisuddha Nadar 1961 2 M.L.J 285=74 L.W 338. a Division Bench of this Court considered the question whether it was open to a claimant to assert title to the lands acquired against the State Government which became vested in it by force of operation of the statute, viz, Tamil Nadu Act 26 of 1948. The argument was that when once an Estate was taken over by the State Government under the provisions of the Tamil Nadu Estates Abolition Act, the State became the absolute owner thereof and no claim against the Government can be put forward by any other person. That argument was repelled on the ground that the claim of the State Government acquiring its own land and paying compensation to itself was ridiculous and that the State Government is not competent to put forward its own title to the acquired property in proceedings under the Land Acquisition Act as the very scheme of the Land Acquisition Act is on the basis that the land acquired belonged to others and not to itself. We have not been persuaded to hold that this principle is inapplicable on the facts and circumstances of this case or that it is erroneous. Thus, even on the principle laid down in the decision referred to earlier, it follows that the Government cannot resile, now from the land acquisition proceedings already commenced.

13. The question whether the resort had by the State to the provisions of the Land Ceilings Act with reference to the lands in question, in respect of which proceedings had already bees initiated under the Land Acquisition Act, is not a colourable exercise of power, may now be considered. We are assuming for purposes of considering this aspect that the State has the power to acquire lands for the irrigation scheme in question under both the enactments. It is obvious that if the proceedings under the Land Acquisition Act are pursued to their conclusion, the State will be obliged to pay compensation to the respondents in respect of the acquired lands at the market value, which prevailed at or about the time of notification under S. 4(1) of the Land Acquisition Act. It is also not in dispute that the compensation payable in respect of the surplus lands taken over under the provisions of the Land Ceilings Act does not bear any comparison at all with the compensation payable under the provisions of the Land Acquisition Act. In other words, the State has a choice of applying two enactments with reference to the lands in question-one that would oblige it to pay a higher compensation and the other, under which, a very meagre amount alone may become payable. In such a situation, it is not open to the State to use its powers under one of the two enactments, which will be more disadvantageous to the citizen. Even on the assumption that it is open to the State to resort to the acquisition of the lands in question under the provisions of the Land Ceilings Act for the purpose of the irrigation dam, the State cannot proceed to exercise its powers thereunder to the detriment of the citizen, in the matter of compensation, which would not arise if proceedings invoking the provisions of the Land Acquisition Act already commenced were continued. We may usefully refer in this connection to the following observations of the Supreme Court in Jiwani Kumar Parkai v. First Land Acq. Collector:

“Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned then unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law.”

We are of the view that even assuming that it is open to the State to resort to the provisions of Land Ceilings Act to acquire lands for the irrigation dam in question, it would be a misuse of its power. We are unable to understand the decision of the Supreme Court in M.R Mudaliar v. State of Madras as enabling the State to have some kind of a choice in the matter of the acquisition of lands. The argument in that case was that the proceedings under the Land Acquisition Act having been taken already, that would not bar the application of the provisions of the Tamil Nadu Lease holds (Abolition and Conversion into Ryotwari) Act, Act 27 of 1963. It was pointed out that the provisions of the Land Acquisition Act and the Tamil Nadu Act 27 of 1963 operated on different fields and that the grant of a ryotwari patta under S. 9 would enable the grantee to get compensation under the Land Acquisition Act. This decision, in our view, does not in any manner justify the State in its choice of one enactment in preference to another. It has to be remembered that even by the application of the provisions of Tamil Nadu Act 27 of 1963, the grantee of the patta would still have in him an interest, which is capable of being acquired under the provisions of the Land Acquisition Act and it was in that context, the Supreme Court pointed out that the two enactments opiated in different fields. Such a situation does not obtain in this case. Whether it be under the provisions of the Land Acquisition Act or the Land Ceilings Act, the result is the total extinction of the interest of the owner of the land in the lands. There is therefore no scope for the contention that both the enactments could operate at the same time. We are therefore of the view that the decision relied upon cannot in any manner assist the State in justifying the application of one enactment instead of the other. We therefore hold that there is misuse of the power by the State in applying the provisions of the Land Ceilings Act to the lands in question, when proceedings had already been initiated under the Land Acquisition Act.

14. Lastly, the learned Additional Government Pleader submitted that the extent of 411.04 acres declared as surplus may be taken over by the State pursuant to the proceedings under the Land Ceilings Act as part of its policy to bring about agrarian reforms. In this connection, learned counsel also relied upon the observations of Krishna Iyer, J., in State of Kerala v. Gwaliar Rayon Silk Mfg. Co., to contend that the construction of irrigation systems would also be within the ambit of agrarian reforms. We may briefly refer to the scope of the Land Acquisition Act as well as the Land Ceilings Act. The object of the Land Acquisition Act is to acquire lands needed for public purposes and for companies and for determination of the amount of compensation in respect of such acquisition. The Land Ceilings Act had been enacted to give effect to the Directive Principles of the State policy in Art. 39 of the Constitution of India. Art. 39 deals with the State directing its policy towards securing ownership and control of material resources of the community with a view to secure equitable distribution in such a manner as to subserve common good in order that the concentration of wealth and means of production to common detriment, in the hands of a few, did not result. The Preamble of the Land Ceilings Act further indicates that the primordial purpose is to acquire lands in excess oi the ceiling area in oider that such excess may be made available for distribution amongst the landless and other persons in the rural areas in accordance with the rules framed. Thus, the policy of the Land Ceiling Act as well as the rules shows that the surplus lands have to be allotted to the landless persons and not for other purposes. It may be that the provisions of the irrigation facilities is also part of agrarian reforms as sated in the judgment of the Supreme Court relied on by the learned Additional Government Pleader. But agrarian reforms is not one of the avowed objects of the Land Ceilings Act, which is intended only to reduce the dis parity in the ownership of agricultural lands and to secure an equitable distribution of the surplus lands in a manner, which would sub serve the common good, result in agricultural production and promote justices, social and economic. Taking into account the purpose and object of the Land Ceilings Act, the appellants cannot rely upon its provisions to acquire lands needed for an irrigation project. Presumably, realising this, the State had thought it fit to initiate proceedings under the Land Acquisition Act, so as to acquire the surplus lands belonging to the respondents. Not content with merely issuing a notification under S. 4(1) of the Act, the proceedings also culminated in a declaration under S. 6 of the Land Acquisition Act, at least with reference to a major portion of the lands for the Dam site as the water spread area and that had been taken possession of. Under those circumstances, it is not open to the appellants to justify the taking over of the surplus lands in question under the guise of bringing about agrarian reforms under Land Reforms Act. No other point was urged.

15. Thus, on a careful consideration of the facts and circumstances of the case, we are of the view that no case is made out for interfering with the judgment of the learned Judge. We accordingly dismiss these appeals with costs. (One Set).

VCS.