1. Regular Second Appeal No. 1494 of 1973 is instituted by the plaintiffs in L. C. Suit No. 78 of 1964 on the file of the Munsiff, Kundagol, and is directed against the judgment and decree dt. 25-8-1973 passed by the Civil Judge, Hubli, in Regular Appeal No. 5 of 1968, on his file, dismissing the appeal, on confirming the judgment and decree dated 20-12-1967 passed by the Munsiff, Kundagol, in L. C. Suit No. 78 of 1964, on his file, dismissing the suit of the plaintiffs.
2. Regular Second Appeal No. 84 of 1974 is instituted by the legal representatives of the original plaintiff in L. C. Suit No. 28 of 1962 on the file of the Munsiff, Kundagol, and is directed against the judgment and decree dated 25-8-1973 passed by the Civil Judge, Hubli, in Regular Appeal No. 66 of 1970, on his file, allowing the appeal, on reversing the judgment and decree dated 23-2-1970 passed by the Munsiff, Kundagol, in L. C. Suit No. 28 of 1962, on his file, decreeing the suit of the original plaintiff.
3. It appears that about 24 persons of Pura village made an application to the Assistant Commissioner, Savanur, praying that they should be granted lands for serving them as backyards to their houses and for using the same for agricultural purposes. The application is dated 30-1-1956. Earlier, they had made an application to the Assistant Commissioner for acquisition of the present suit lands in the two suits for distributing the lands among them for the same purpose. That request was rejected and no acquisition was made. Subsequently, on the application of the villagers, it appears that a preliminary notification under Section 4(1) of the Land Acquisition Act, (hereinafter referred to as 'the Act'), was issued by the Assistant Commissioner on 23-6-1958 proposing to acquire Survey Nos. 320 and 325 for the purpose of extension of Pura village. The concerned owners objected. Even so, the matter, it appears, proceeded and, ultimately, the Assistant Commissioner issued declaration under S. 6 of the Act, in the Mysore Gazette dt. May 7, 1959. The declaration is dt. April 8, 1959, (Vide Exhibit P-11), and, subsequently, in spite of the objections, an award was also passed to acquire the lands and the award is dt. 4-10-1961. It was intimated to the present plaintiffs on 8-10-1961. Immediately thereafter, L. C. Suit No- 78 of 1964 was filed on 23-1-1962, (the subject-matter of Regular Second Appeal No. 1494 of 1973), and L. C. Suit No. 28 of 1962 was instituted on 6-6-1962, (the subject-matter of Regular Second Appeal No. 84 of 1974).
4. The plaintiffs in both the suits, who are the owners of the suit lands acquired, have challenged the acquisition on the ground that the State Government has played fraud on law and has acquired the lands under colourable 'public purpose', which is not at all a public purpose, just to oblige the applicants in Exhibit P-8, who were inimically disposed towards the plaintiffs and who failed in their earlier attempt to get the lands acquired in the year 1955.
5. The plaintiffs further contended that the entire acquisition is void as the procedure is not properly followed. According to them, the purpose was not 'public purpose' as it was meant only for giving sites to some applicants in the village for their private benefit. They elaborated the allegation of fraud by stating that there was no request made by any local authority like the Village Panchayat for acquisition of lands for extension of the village; that the Government did not contribute proportionately and that they offered only Re.1/- as nominal contribution; that the Municipality of Kundagol has opposed the idea of acquisition as such acquisition and grant of lands would lead to pollution of drinking water in the municipal limits as the catchment area of the water pond was in these survey numbers which are proposed to be acquired; that no public purpose was mentioned in the declaration issued under Section 6(2) of the Act and that, therefore, the final acquisition should be set aside. The suits were instituted after giving notice to the State Government as contemplated under S. 52 of the Act.
6. The suits were opposed by the Government. They contended that the 'Public purpose' mentioned in the declaration has become final by virtue of S. 6(3) of the Act. They further contended that the Civil Court could not go into that question. According to them, the lands were acquired for public purpose. It was not necessary that the Government should pay the major amount of compensation. They also contended that the suits were barred by time.
7. On these pleadings, the trial Court raised the following issues in L. C. Suit No. 78 of 1964 :
(1) Whether the plaintiffs prove that the acquisition of the suit land is null and void as contended by them?
(1A) Whether this Court has jurisdiction to try this suit?
(1B) Whether the notice under S. 80 of the Civil P. C. is legal and valid?
(1C) Whether the defendant is entitled to compensatory costs;
(1D)Whether the suit is barred by limitation? if any,
(1E) Whether the suit is maintainable by the second plaintiff and whether a fresh notice is necessary by second plaintiff ?
(2) Whether the plaintiffs make out case for damages?
(3) Whether the plaintiffs prove that they are entitled to declaration?
(4) What decree or order?
8. The learned Munsiff, appreciating the evidence on record, answered Issues Nos. 1 1A, 1B and IC in the negative. He further held that Issue No. 1D did not arise for consideration. He answered Issue No. 1E in the affirmative. According to him, no fresh notice was necessary. He answered issues Nos. 2 and 3 in the negative. In that view, the learned Munsiff dismissed the suit of the plaintiffs with costs by his judgment and decree dt. 20-8-1967. Aggrieved by the same, the plaintiffs went up in appeal before the Civil Judge, Hubli, in Regular Appeal No. 5 of 1968, on his file, and the learned Civil Judge, in the course of his judgment, raised the following points as arising for his consideration:
(1) Whether the appellants prove that the acquisition proceedings are null and void? and
(2) Whether the notice issued under S. 80 of the Civil P. C. is bad in law and, therefore, the suit is not maintainable?
9. The learned Civil Judge, reassessing the evidence on record, held that the plaintiffs failed to Prove that the acquisition proceedings were null and void, Under Point No. 2, he held, disagreeing with the conclusion of the trial Court, that the notice was valid in law both under S. 80 of the Civil P. C. and under S. 52 of the Act. In that view, he dismissed the appeal, on confirming the judgment and decree of the trial Court. Aggrieved by the same, the plaintiffs have come up in the above second appeal before this Court, viz., Regular Second Appeal No. 1494 of 1973.
10. The original plaintiff in L. C. Suit No. 28 of 1962 instituted a similar suit on similar grounds to set aside t1le acquisition. Similar contentions were taken by the Government. The trial Court raised the following issues as arising from the pleadings in L. C. Suit No. 28 of 1962:
(1) Is the suit in time?
(2) Can the plaintiff sue for a declaration that the acquisition of the suit land is void?
(3) Whether the plaintiff proves that the acquisition of the suit land is void?
(4) Whether he proves that the acquisition proceedings are conducted fraudulently?
(5) Is he entitled to the declaration and injunction sought?
(5A) Whether this Court has jurisdiction to try the suit in view of para 8 of the written statement?
(5B) Whether the notice is valid?
(5C) Whether the suit is in time?
(6) What order as to costs?
(7) What decree?
11. The learned Munsiff, appreciating the evidence on record, held that the suit was in time that the acquisition proceedings were colourable and fraudulent and the acquisition was, therefore, void. He further held that the Civil Court had jurisdiction to try the suit and, in that view, he decreed the suit of the original plaintiff declaring that the acquisition of the one acre of land in R. S. No. 320 of Kasaba Kundagol village was null and void and inoperative. Aggrieved by the said judgment and decree, the State went up in appeal before the Civil Judge, Hubli, in Regular Appeal No. 66 of 1970, on his file. The learned Civil Judge, in the course of his judgment, raised the sole point as arising for his consideration viz Whether the respondent has proved that the acquisition of the land in R. S. No. 320 was colourable and in fraud of the powers vested in the Government. Reassessing the evidence on record, the learned Civil Judge answered the point in the negative and against the plaintiff, who was the respondent in the appeal in Regular Appeal No. 66 of 1970, and in that view, he allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. Aggrieved by the same, the legal representatives of the original plaintiffs have come up in the above second appeal before this Court viz., Regular Second Appeal No. 84 of 1974.
12. These two appeals were heard together as they pertain to the same preliminary notification and the same declaration under S. 6(2) of the Act and the same questions of law arise for consideration in these two appeals and common judgment is being passed.
13. The learned Advocate Shri Rama Bhat, appearing for the appellants in the two appeals, strenuously urged before me that the Court below did not properly appreciate the provisions of law and proved facts in the suits. According to him, the Government had committed fraud on the provisions of law and the purpose shown as 'public purpose' was colourable and, as such, the acquisition was bad in law. He further submitted that the various factors brought on record and proved were not considered by the Court below. Therefore, he submitted that the appeals were entitled to succeed.
14. As against that, the learned Government Advocate argued supporting the judgments and decrees of the first appellate Court dismissing the two suits.
15. The points, therefore, that arise for my consideration in these two appeals are:
(1) Whether it can be said that the State Government has exercised be powers vested in it colourably and, that way, acquired the two lands in question under the guise of 'public purpose'?
(2) Whether the declaration made by the Government under S. 6(2) of the Act (as per Exhibit P-11) is conclusive?
(3) Whether the suits are barred by limitation?
(4) Whether the judgments and decrees of the Court below are liable to be set aside?
16. Elaborating his argument, the learned Advocate appearing for the appellants in the two appeals submitted that Exhibit P-8 would show that some villagers applied to the Assistant Commissioner for providing them sites behind their houses to serve them as backyards to their houses. They complained that they did not have enough space for stocking fodder and for threshing the grains. The entire proceedings have commenced on the basis of that application, a copy of which is produced as Exhibit P-8. It is dated 30-1-1956. It is on record that an Undertaking is taken from the signatories to Exhibit P-8 that they would deposit the amount of compensation for acquiring the lands in the two survey numbers. It is further on record that the Government had agreed to contribute Re. 11- towards token contribution for the purpose of acquisition. It is also on record that a similar request made by the applicants in the year 1955 to the Assistant Commissioner for acquisition was rejected. It is further on record [hat the Municipality, Kundagol, passed a Resolution as per Exhibit P-3 to the effect that the lands should not be acquired and the sites should not be distributed to the applicants under Exhibit P-8 as that would result in polluting the water of the pond nearby from which drinking water was supplied to the citizens of Kundagol as the area in question forms the catchment area of the pond. Thus, the learned Advocate appearing for the appellants submitted that the purpose for which the lands were acquired was not at all 'public purpose'.
17. It is no doubt true that the term 'public purpose' is defined under S. 3M of the Act. That states inter alia that the expression 'public purpose' includes (i) the provision of village sites; (ii) the provision of land for planned development; and (iii) the provision of land for town or rural planning.
18. It is no doubt true that in the notification under S. 4(1) of the Act, it is mentioned that the lands are required for extension of the village. But, it is not difficult to see the real purpose for which the lands are acquired.
19. It is no doubt true that if the procedure contemplated under S. 6 of the Act was followed, before issuing the declaration, mentioning the public purpose, S, 6(3) of the Act would have made that declaration conclusive, i.e., that the land is needed for a public purpose. But, it is not so done on the facts of the present cases.
20. Section 6 of the Act speaks of declaration that land is required for a public purpose. Sub-section (1) of that section states that subject to the provisions of Part VII of the Act, when the appropriate Government is satisfied, after considering the report, if any, made under S. 5A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, such Government shall direct the Deputy Commissioner to proceed under sub-section (1A) of the Act. Sub-section (1A) speaks of the procedure to be followed by the Deputy Commissioner in submitting the report. Sub-section (2) of S. 6 speaks of the manner and the contents of the declaration. Sub-section (3) states that the declaration shall be conclusive evidence that the land is needed for a public purpose.
21. Thus, it is clear by analysing the scheme of S. 6 of the Act that the declaration shall become final only when the other steps and procedure mentioned in S. 6 of the Act are scrupulously followed and not otherwise.
22. In these cases, by looking into the declaration Exhibit P-11 issued under S. 6(2) of the Act, it is obvious that the column for which purpose the lands are needed is left blank. In the body of the declaration, it is stated thus:-
'Whereas by Government Notification in the Local Self-Government and Public Health Department No. LLH 854 VAQ 57, dt. 11th March 1958, it was notified that the lands specified in the schedule hereto (hereinafter referred to as the said lands) were likely to be needed for the public purpose specified in column 4 of the Schedule hereto-'
But, as stated above, in the Schedule in Column 4, the purpose is not at all mentioned.
Moreover, the lands mentioned in the declaration in Exhibit P-11 are:
(See Table Below)
District, Taluk, Village Approximate area of the lands required. Public purpose for which
In which lands are Survey Number A. G. As. The lands are needed.
District: Dhanwar 320 1 0 4 --- ---
Mahal : Kuundgol 325 1 4 1 --- ---
Village: Kundgol (Pur)
23. Thus, the lands to be acquired are from Pur Village and not Kundgol village, because Kundgol and Pur villages are entirely different. Even under S. 4(1) Notification produced at Exhibit P-2, the name of the village is not specified. Thus, the declaration is not a declaration at all as contemplated under S. 6(2) of the Act.
24. Section 6(2) of the Act states:
'Every declaration shall be published in the Official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, the precise boundaries and survey number, if any, of the land and its approximate area and the Place where a plan of the land may be inspected.'
24-A. It is only then sub-section (3) states:
'The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in the manner hereinafter appearing.'
25. As pointed out above, in the present case, neither the lands are specifically described nor the purpose is stated in the declaration published as per Section 6(2) of the Act. That being so, it is obvious, that the declaration is not a declaration as contemplated under the Act and as such the presumption that such a declaration shall be conclusive evidence that the land is needed for a public purpose does not arise on the facts of the present case.
26. The Supreme Court of India in the case of Smt. Somawanti v. State of Punjab : 2SCR774 has observed in para 36 of the judgment thus:
'Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exercised only where there is a public purpose, leaving aside for a moment the purpose of a company. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will be final,'
In the present case, the ground made out by the plaintiffs is that the Government has exercised its power in fraud of the provisions of law. It is a mere colourable exercise and the land is acquired not for a public purpose but for private purpose describing it as a public purpose.
27. 1 have shown above that in fact no purpose is shown by the Government in the declaration made under S. 6(2) of the Act vide Ext. D-11. Even if it is taken under S. 4(1) notification, the purpose is mentioned as (vernacular omitted) for extension of village Pur, it is the averment of the plaintiffs that it is not genuine but only colourable as the real intention of the Government is to provide plots to some of the applicants under Ext. P-8.
28. 1 have held above that the presumption contemplated under S. 6(3) of the Act would not arise on the facts of this case. Therefore, it is open to this Court to go behind it, even otherwise when there is assertion of colourable exercise of power, it is open to this Court to examine, whether the alleged public purpose is really a public purpose.
29. In fact, the Supreme Court of India in the aforesaid case at page No. 165 in para 40 of the judgment has observed thus:
'Though we are of the opinion that the courts are not entitled to go behind the declaration of the Government to the effect that a particular purpose for which the land is being acquired is a public purpose we must emphasise that the declaration of the Government must be relatable to a public purpose as distinct from a purely private purpose. If the purpose for which the acquisition is being made is not relatable to public purpose then a question may well arise whether in making the declaration there has been, on the part of the Government a fraud on the power conferred upon it by the Act. In other words, the question would then arise whether that declaration was merely a colourable exercise of the power conferred by the Act, and, therefore, the declaration is open to challenge at the instance of the party aggrieved. To such a declaration the protection of S. 6(3) will not extend. For, the question whether a particular action was the result of a fraud or not is always justiciable, provisions such as S. 6(3) not with standing.'
The application even by some of the villagers at Ext. P-8 makes it very clear that they applied for sites behind their houses for stocking agricultural materials and for being used as thrashing floor etc. It is further in evidence that the Government has taken undertaking from them that they would pay the entire compensation for the acquisition of lands for the purpose and the Government contribution is only Re. 1, in other words, a mere token contribution. So. the question that arises for my decision on the facts of the case is: 'Whether the acquisition for the purpose of providing sites to private individuals behind their houses would be a public purpose?'
30. In the case of Premnath v. State of Jammu and Kashmir (AIR 1960 J & K 78), the High Court of Jammu and Kashmir has held that giving over one person's land to another person for his private enjoyment and personal gain cannot be designated a public purpose. Here, instead of giving the land to one person, the Government purports to give the lands to some persons for their private use. It may be emphasised here that it is not necessary to constitute a public purpose that the land should be required for the entire village. Even if it is required by a section of the village, it would still be a public purpose. But the facts of the case would reveal that it is not required either by the public of the village or by any particular section of the public of the village. It is required by some private individuals to use the lands as sites behind their houses. They want backyards to their houses for their private use. That is what is contained in Exhibit P-8 (the application) and that is the purpose of acquisition. That being so, it is obvious that the purpose for which the lands are to be acquired is not at all a public purpose. That being so, notification under S. 4 or declaration under S. 6 of the Act cannot be justified. Where there is clearly no public purpose at all, a mere declaration under S. 6 of the Act, as stated above, would not help the Government. Such a declaration will be an example of abuse of power, it will be in fraud on powers conferred by the provisions of the Act; it will be a colourable exercise of powers conferred on the Government and no acquisition could be made on the basis of such notification or declaration.
31. The learned Munsiff has further pointed out in the course of his judgment that no public authority or local authority like the Village Panchayat has asked for extension of the village. If really the lands were acquired for extension of the village, the Village Panchayat should have come forward with an application to acquire the lands. Similarly, if the lands were required by the weaker sections of the Society, then also the Panchayat should have come forward with an application. In the instant case, the facts on record would clearly establish that it is a few villagers who have come forward with a request to acquire the lands for their private benefit, namely, to have backyards to their houses. It would clearly be a misnomer to call that a public purpose and it is for that reason that I hold that the notification issued and declaration made are in fraud of the provisions of law and it is a colourable exercise of power conferred on the Government and, therefore, the acquisition cannot be allowed to stand.
32. The learned Civil Judge has not considered these aspects at - all though they were to some extent considered by the learned Munsiff. Hence, the judgment and decree of the learned Civil Judge cannot be sustained and maintained and the judgment and decree of the learned Munsiff have to be sustained and maintained in the L. C. Suit No. 28/62. In L. C. Suit No. 78/64, the judgments and decrees of both the courts below have to be set aside.
33. The learned Govt. Advocate further submitted that the suits are barred by time. There is no substance in the contention so raised. Suits are for setting aside the award. The award is dated 30-9-1961 vide Ext. D-2. They were notified to the plaintiff on 8-10-1961 vide Ext. D-1. The suits are instituted on 6-61962 and 23-1-1962. That being so, it is obvious that they are within time. That is what is held by both the courts below.
34. In the result, therefore, R.S.A. No. 1494 of 1973 is allowed. The judgments and decrees of the courts below are set aside and the suit of the plaintiff is decreed in part. The acquisition of the land in question is hereby set aside. No costs.
35. R.S.A. No. 84 of 1974 is allowed. The judgment and decree of the learned Civil Judge are set aside and the judgment and decree of the learned Munsiff are hereby sustained and maintained. The impugned acquisition in question is hereby set aside and the suit is decreed to that extent. No costs.
36. Ordered accordingly.