1. The plaintiff-respondent filed the suit under consideration in this appeal for declaration that the acquisition of two shops mentioned in the plaint schedule by the Government at the instance of the Bangalore City Municipality is illegal and invalid and for an injunction restraining the defendants, that is, the Bangalore City Municipality and the Land Acquisition Officer from disturbing the possession of the plaintiffs.
2. The Government started acquisition proceedings at the instance of the Bangalore City Municipality, as it then was, for acquisition of the two shops now under consideration and a few other shops and according to the notification the acquisition was necessary for widening Rangaswamy Temple Street at the junction of the Avenue Road, Bangalore City, and for adding some land to SriSiddaroodaswami Mutt. As is clear from Ext. II, the plaintiff who is the owner of the two shops, objected to the acquisition on the ground that the two shops were separated by another building which was not acquired, from the other shops acquired for purpose of widening the road, and the acquisition of his two shops was for the private purpose of adding some lands to what is known as Siddaroodaswami Mandali there being no Siddaroodaswami Mutt as such, and that the acquisition also was not valid as the Government had decided that the acquisition of the land must be at the cost of Siddaroodaswami Mandali. It is surprising as was contended that the authorities concerned decided to acquire the shops which had been dedicated to an ancient temple of the City, but we are concerned with the legality of the acquisition and not with the propriety.
3. It is not seriously disputed that acquisition of the property under the Land Acquisition Act with the purpose of giving the property to a Mutt. or any private individual is illegal. But what was urged is that the acquisition is at any rate partly for the purpose of widening the road and as such it cannot be said that the acquisition is not legal. It is not necessary to consider in this case whether an acquisition of some property partly for a public purpose within the meaning of Section 3, Clause (f), Land Acquisition Act, and partly for a purpose not contemplated by that Act is valid or not, as in this case it is clear that the acquisition is in respect of two different set of properties one set being required for the public purpose of widening the road and the other for the purpose of adding some land so acquired to a building belonging to what is referred to as Siddaroodaswami Mandaii.
Exhibit D makes it clear that the plaintiff has been informed that the Government has directed immediate action being taken to hand over possession of the two shops of the plaintiff to the authorities of Siddaroodaswami Mandali While it is clear that the two shops were acquired for purpose of giving the land on which the two shops have been built to Siddaroodaswami Mandali, the-other three shops separated from these two shops by another building not acquired, were acquired for purpose of widening Rangaswami Temple Street at the place where it joins the Avenue Road. It is also clear from the evidence that the cost of acquisition of the shops now in question has to be met not by the Government or by the Municipality.
4. The acquisition of the two shops is void for more than one reason. Under Section 6, Land Acquisition Act, the Government must be satisfied that the land to be acquired is needed for a public purpose or for a Company and it cannot be said in this case that the two shops were required for any public purpose or any Company. Then again, under the proviso to that section no declaration for the acquisition of the land can be made unless the compensation to be awarded is to be paid by a Company or wholly or partly out of the public funds. In this case, the acquisition of the two shops is bad as the cost had to be met by Siddaroodaswami Mandali. Then again the Municipality can only get lands acquired under Section 43, City Municipalities Act, and it is as follows:
'When any land, whether within or without the limits of the Municipality, is required for the purposes of this Regulation, the Government may, at the request of the Municipal Council, proceed to acquire it under the provisions of the Land Acquisition Regulation, 1894, and on payment by the Municipal Council of the compensation awarded under that Regulation and of any other charges incurred by the Government in connection with the acquisition, the land shall vest in the Municipal Council.'
5. A careful reading of this section makes the following points clear. First it cannot be said that acquisition of land for being added on to the premises belonging to Siddaroodaswami Mandali can be said to be for any purpose under me Municipalities Act. Secondly, the Municipality cannot acquire any land for the use of some body else. Thirdly, it cannot also be said that the Municipality by the Municipal Council has or could have paid the compensation or other charges incurred by the Government as contemplated by this section. It was observed in -- Manickchand Mehta v. Corporation of Calcutta', 48 Cal 916: (AIR 1921 Cal 159 (A) ) :
'Though the notification under Section 6, Land Acquisition Act, is conclusive so far as Section 4, Evidence Act, is considered, yet the Court is entitled to inquire into the validity of the steps leading up to the recommendation, and was competent to inquire into the legality or otherwise of the acts of the Corporation and the Trust. Also, held, that special powers of the Corporation for purposes of acquiring land cannot be used to enable another body to acquire land through them, however estimable the purpose. The power to acquire is limited to cases where the Corporation itself, undertakes the work'.
It can be stated in this case, as was done in the case reported in -- '23 Mys CCR 228 at p. 234 (B):
'In the case before us an essential pre-requisite to the exercise by Government of the power to take compulsory proceedings for acquisition is absent, in that the compensation to be awarded is not to be paid wholly or partly out of public revenues'.
6. Regarding the objection that the Government is a necessary party to the suit, it cannot be said in cases of this kind that the suit against the Land Acquisition Officer or other persons interfering with possession, without the Government being made a party, is not maintainable in view of the decision in -- '22 Mys CCR 277 (C)'. As was observed in -- '43 Cal 916: (AIR 1921 Cal 159) (A)':
'It is to be assumed that the Local Government and the Land Acquisition Authorities will stay their hands in view of a decision of the Court, and not be parties to what may be held to be illegal and ultra vires action'.
7. The judgment and decree of the learned Subordinate Judge, therefore, declaring the acquisition as void and granting an injunction restraining the defendants from taking possession must be affirmed. The appeal stands, therefore, dismissed with costs.
8. The plaintiff sued defendants 1 and 2 who are, the Bangalore City Municipality represented by its Commr. and the Special Land Acquisition Officer attached to that Municipality for a declaration that the acquisition of the suit properties consisting of two shops in Rangaswamy Temple Street, Bangalore City, was illegal, invalid and inoperative and for a permanent injunction restraining them from entering upon or otherwise interfering with its' possession and enjoyment. His suit was dismissed by the Munsiff but on appeal the Subordinate Judge has set aside the judgment and made a decree as prayed for against both the defendants. The Bangalore City Municipality by its Commissioner and the Special Land Acquisition Officer have now come up in second appeal.
9. The case for the plaintiff is that defendant 1, at the instance of an association called Sid-dharudaswamy Mandali proceeded to acquire the plaint schedule shops for making them over to that Mandali and that such an acquisition was not for a public purpose and was not in law permissible either under the Mysore Land Acquisition Act or the Mysore City Municipalities Act. The defendants pleaded that the proposed acquisition was for the purposes of widening the road at the place where the property is situate and also to add land to the property of the Mandali which is said to be a religious and charitable institution and was registered under the 'Religious and Charitable Associations Act''. There is no Act of that name and apparently what is meant is the Societies Registration Act 30 of 1904. They also pleaded that the plaintiff's suit was not maintainable and was also barred under Section 6, Land Acquisition Act.
10. It is contended by Mr. B. R. Keshava Iyengar, learned Counsel for the appellants, that the purpose for which the acquisition is proposed is really a 'public' purpose, i.e., the widening of the road, and that even if it is found that the other object which is tacked on to that purpose and is mentioned in the notification, i.e., to give some land to the Mandali is not such a purpose, it cannot be said that the combined object is not a public purpose. He represents that the cost of the acquisition or the compensation amount is to be met from out of the funds of the Bangalore City Municipal Council as well as of the Mandali, and that therefore the acquisition is for a public purpose according to the test laid down by Section 6(2), Mysore Land Acquisition Act.
He has relied in this connection on a case reported in -- 'Abdul Rasak v. Abdul Rahim', AIR 1945 Mad 304 (D) where it has been held that it is sufficient compliance with the proviso to Section 6 (1) if any part, however small, is paid out of public funds.
11. Mr. S. N. Krishniah, learned counsel for the respondent, has urged that the Mandali, which is called Sri Siddharudhaswami Mutt in the notification for acquisition, Ex. I, is not either a company registered under the Companies Act or a local authority as contemplated in Section 6, Land Acquisition Act; that the Mandali cannot obviously be contributing its funds to the widening of the road and that such a thing is not urged or even pleaded. That the Mandali is therefore contributing its funds for the cost of acquisition only in so far as it concerns it, viz., the addition of some land or additional property to itself. There is considerable force in this contention of Mr. Krishniah and it must be accepted.
Exhibit D is an endorsement by the Special Land Acquisition Officer on 2-11-1945 with reference to an application by the plaintiff protesting against the proposed acquisition of the plaint schedule shops and the plaintiff is thereby informed that that officer had been directed by Government to take immediate action to hand over possession of the said (suit) budding to the authorities of the Siddharudaswami Mandali and calling upon the plaintiff to deliver up possession of the properties to the Municipal Engineer failing which coercive steps would be taken under Section 47, Land Acquisition Act, before the City Magistrate. It is thus clear that the suit shops were being acquired for the express purpose of making them over to the Mandali who were to meet the cost of its acquisition and that there could be no connection between this object and the widening of the Municipal road for which other properties were being acquired as seen from Ex. I, the notification, under Section 4, Land Acquisition Act.
12. Mr. Krishniah further urges that a Municipal Council can ask the Government to acquire land only for certain purposes and to fulfil certain objects prescribed by the Mysore City Municipalities Act 7 of 1933 and that the present acquisition does not fulfil those requirements. Under Section 43 of that Act it is only when any land 'is required for purposes of the Act' the Government may at the request of the Municipal Council proceed to acquire it and on payment, by the Municipal Council of the compensation awarded under the Land Acquisition Act the land vests in the Municipal Council. Under Sections 58 & 61 of that Act the obligatory and discretionary functions of the Municipal Councils are set out: & it is not even suggested that it is any part of the Municipal Council's functions or duties to take away the land of a private individual through acquisition and make it over to a private individual or institution like the Mandali or that it is so empowered; and the acquisition of the suit property is not being defended on that basis.
13. Mr. Keshava lyengar, however, contends that the suit 'as brought by the plaintiff for a declaration against the Municipal Council and the Land Acquisition Officer without making Government a party is not maintainable. He urges that the Land Acquisition Officer is merely an officer of Government who is acting for and on behalf of the Government and is merely carrying out the duties prescribed under the Land Acquisition Act and that in Mysore no such suit could have been brought against the Government in 1946 bet ore the Constitution. These objections have, however, been considered in two cases of this Court reported in -- '22 Mys CCR 277 (C)' and -- '23 Mys CCR 228 (B).'
In -- '22 Mys CCR 277 (C)' the plaintiff sued the Secretary to the Government of Mysore in the General and Revenue Departments and the Deputy Commissioner of Mysore who was the officer authorised to take action under the Mysore Land Acquisition Act, for a declaration that an order of Government authorizing him to take action for the acquisition of certain lands in Mysore under the Land Acquisition Act was contrary to the Act and of no effect and for an injunction restraining the Deputy Commissioner from taking possession of the land. The District Judge dismissed the suit on the ground that it was a suit against the Government and that in Mysore such suits do not lie against the Government. Sir Leslie Miller, C. J. and Paramasiva Iyer, J. held in that case that there was no cause of action against the Secretary to Government as he had merely signed a declaration under Section 6. Land Acquisition Act. He was neither the Government of Mysore nor an officer authorized by that Government to direct the Deputy Commissioner to acquire the land but only the hand by which the authority of Government was transmitted.
They further held that the Courts in Mysore have jurisdiction to decide whether an act of the Government which purports to be done under the warrant of an enactment is or is not warranted by that enactment and if it is not so warranted to make a declaration to that effect in a suit against the officer authorized to give effect to the illegal act and that a public officer who acts illegally cannot protect himself by pleading the authority of Government and the Courts are not powerless to issue an injunction in a proper case to restrain a public officer from committing an illegal act. They, therefore, held that the suit as against the Secretary to Government did not lie and that the suit against defendant 2 did lie. There still remained two questions to be answered:
(1) whether the Courts were entitled to decidethat the purpose stated in the notification is not a 'public purpose' within meaning of the Act? and (2) If they were so entitled whether the purpose stated In the case before them was a public purpose or not? They remanded the case to the lower Court for a determination of those questions.
After the case went back to the District Judge he declared me notification issued in the case illegal and the subsequent acquisition proceedings null and void. Tne case again came up before Chandrasekhara Aiyar, Offg. C. J. and Plumer, J. and their decision is reported in --'25 Mys CCR 228 (B)'. It was urged before them by the Government Advocate that inasmuch as the declaration of the intended acquisition of the land published in the Official Gazette was conclusive evidence that the land was needed for a public purpose, the District Judge was wrong in making a declaration to the contrary. In that case the first, Government order sanctioning acquisition of certain lands directed that me cost of' acquisition should be charged to the Third Maharajakumari's Estate, and a later one authorized the Comptroller to place certain sum at the disposal of the Deputy Commissioner, the charge being debited to the Third Maharajakumari's Estate as directed in the previous order. Their Lordships held that there was no intention to pay, though it was arranged to advance the amount of compensation from the public revenue, and that essential prerequisite being absent in that the compensation was not to be paid out of the public revenue, the entire proceedings for acquisition were 'ab initio' null and void.
They further held that the direction contained in the proviso to Sub-section (1) to Section 6, Land Acquisition Act, was a condition imposed by the Statute which must be complied with in substance and spirit before the Government can become clothed with the power to make a declaration which is the starting point for proceedings under acquisition. They relied for so holding on the following passage in -- 'Rameswar Singh v. Secretary of State', 34 Cal 470 (E) at pp. 480 and 481:
'In order to give validity to the proceedings and finality to the award in which they terminate, the power of acquisition with all statutory limitations and directions for its use must be strictly pursued; every essential prerequisite to the jurisdiction called for by the statute must be strictly complied with. It is an elementary proposition that statutory provisions in respect of acquisition of lands must be strictly complied with, and the burden of proof of compliance rests upon those who claim statutory powers or base their title upon the exercise of statutory provisions'.
14. In -- '48 Cal 916: (AIR 1921 Cal 159) (A)' it has been held that though the notification under Section 6, Land Acquisition Act, is conclusive so far as Section 4, Evidence Act, is concerned yet the Court is entitled to enquire into the validity of the steps leading to the recommendation and is competent to enquire into the legality or otherwise of the acts of the Corporation and for whose benefit the land is being acquired. It was also held in that case that the special powers of the Corporation of Calcutta for the purpose of acquiring the land could not be used to enable another body the Calcutta City Improvement Trust, to acquire land through them however estimable the purpose. The power to acquire was limited to cases where the Corporation itself undertook the work. They also observed that it was to be assumed that the Local Government and the land acquisition authorities would stay their hands in view of a decision of the Court and not be parties to what may be held to be an illegal and 'ultra vires' action. This observation was necessitated by an argument which was advanced before the learned Judge as has also been put forward in the case before us, viz., that as the Government was not a party to the suit they may not feel themselves bound by the decision of the Court, and give effect to it. Such an objection is also answered by Sir Leslie Miller, C. J. in -- '22 Mys CCR 277 (C) in the same way.
15. For the appellants reliance has been placed on some cases which may be examined, in -- 'Shastri Ramchandra v. Ahmedabad Municipality', 24 Bom 600 (F) the District Municipality purchased through Government a narrow strip of land at the entrance of a private street for the purpose of widening the street in order to facilitate the effective use of fire engines. It was clearly a purpose within the powers of the Municipality and was conducive to the promotion of public health, safety and convenience and it was therefore held that the Civil Court had no jurisdiction to restrain the Municipality from the exercise of such powers. Even in that case Parsons. J. pointed out that the land acquired would not be 'thrown into and become a part of' the private road:
'It would become vested in the defendant Municipality for being used by them for any purpose sanctioned by the Bombay District Municipal Act.'
16. In -- 'Suryanarayana v. Province of Madras', AIR 1945 Mad 394 (FB) (G) it has no doubt been held that Section 6, Land Acquisition Act, is a bar to a Civil Court questioning a declaration by a Provincial Govern merit that a land is required for a public purpose. But it is, however, pointed out in that decision that:
'Of course, if the Provincial Government in fraud of its powers directed land to be acquired a suit would no doubt lie; but where there is no charge against the Provincial Government that it has acted in fraud of its powers, its action in directing the acquisition cannot be challenged in a Court of law.'
In that case it was conceded for the appellant that it could not be said that the Provincial Government had acted 'in fraud of its powers'. Mr. Keshava lyengar has laid stress on this observation and urged that it is only if 'fraud' is alleged or proved that a suit will lie and that there was no such charge in this case. There seems to be no Justification for construing that observation as confining to the class of cases so punishable but only to cases where 'fraud' is alleged. The expression 'fraud of its powers' has a wider significance. If the avowed or real object which may or may not be expressed in the notification can be proved to be illegal or 'ultra vires' of the Land Acquisition Act as in -- '22 Mys CCR 277 (C)' or the City Municipalities Act or other enactment as in--'48'Cal 916: (AIR 1921 Cal 159) (A) it is obvious that a suit does lie even according to the principle conceded by their Lordships in their observation.
17. In -- 'Municipal Corporation of Bombay v. Ranchordas Vandravandas, AIR 1925 Bom 538 (H) the notification under Section 6, Land Acquisition Act, stated that the land was required for a public purpose, viz., the building of quarters for Municipal servants of the Bombay City Municipality. It appeared that the Bombay Municipality contemplated designing the ground floor portion as shops to belet on hire. The plaintiffs who were interested in the property proposed to be acquired challenged the purpose of tne acquisition on tne ground that the building of shops lor renting them out was not a public purpose. On the tacts and circumstances of that case that objection was not upneid, tne learned Judges based their decision on the ground that the contemplated utilization of the ground floor of the premises to be built upon the area in suit as shops was not sufficient to invalidate the whole scheme.
There could be no doubt that as held in thatease the building oi quarters for Municipal servantswas a measure likely to promote public convenience and could properly have been undertaken bythe Municipal Council. This is permitted alsounder the Mysore City Municipalities Act, Section 61(2) (e). That was the real and only purpose ofthe acquisition and was within the discretion ofthe Municipal Council. A Court of law could notbe asked to interfere with the exercise of thatdiscretion. That case has no bearing on the present ease. The grant of grounds or shops to theMandali is certainly not one of the duties andobligations imposed on the Council by the CityMunicipalities Act. The proposed acquisition ofthe plaint schedule shops is therefore clearly notwarranted by the Mysore City Municipalities Actand by Section 6, Land Acquisition Act.
18. In the result the judgment and decree of the learned Subordinate Judge are affirmed and this appeal is dismissed with costs.
19. Appeal dismissed.