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Sri Anjaneyaswamy Temple, Visakhapatnam Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal Nos. 490, 491 and 535 of 1969
Judge
Reported inAIR1972AP244
ActsLand Acquisition Act, 1894 - Sections 5-A, 17(1), 17(2) and 17(4)
AppellantSri Anjaneyaswamy Temple, Visakhapatnam
RespondentGovernment of Andhra Pradesh and ors.
Appellant AdvocateD. Satyanarayana, Adv.
Respondent AdvocateGovt. Pleader
Excerpt:
.....clause cannot be invoked for reason of such land sought to be acquired being neither arable or waste land - section 17 (1) which provides for acquisition of 'waste' land does not affects other provisions which provides for acquisition of 'any' land by invoking urgency clause - government if satisfied that purpose of acquisition is of urgent nature can acquire any land invoking urgency clause - dispute regarding acquisition of buildings to be decided in action under section 49 of act - held, acquisition proceedings dispense with section 5 a initiated against land which is not waste land justified. - - justice madhaya reddy dismissed the petition holding that lands which from part of a building or house site in a town like visakhapatnam could not be regarded as arable land, nor..........with in respect of the lands notified, as they do not come within the meaning of arable or waste land specified n sub-section (1) of section 17 of the act. the applications were resisted by the respondents contending inter alia that the acquisition was for a public purpose viz,., to widen the main road in visakhapatnam city and therefore the action taken under section 17(4) of the act cannot be challenged.3. mr. justice madhaya reddy dismissed the petition holding that lands which from part of a building or house site in a town like visakhapatnam could not be regarded as arable land, nor does not be regarded as arable land, nor does not notifications show that the government treated them as waste or arable lands.4. mr. satyanarayana appearing for the appellants strenuously.....
Judgment:

Obul Reddi, J.

1. These three appeals are preferred against the common judgment rendered by our brother Madhava Reddy, J., dismissing the Writ Petitions Nos. 2232, 2199 and 2200 of 1968 filed by the appellants under Article 226 of the Constitution for quashing the notifications in G. O. R. T. No. 1097, Municipal. Administration, dated 13-2-1967 and G. O. R. T. No. 574 Municipal Administration, dated. 8-8-1967.

2. The main question that is raised by Sri D. Satyanarayana, the learned counsel appearing for the appellants, is that there is no warrant for dispensing with the procedure laid down under S. 5-A of the Land Acquisition Act (hereinafter referred to 'the Act), as the lands acquired are neither waste nor arable lands so as to entitle the Government to exercise special powers under S. 17(4) of the Act. The appellant in Writ appeal No. 490 of 1989 is a temple represented by its trustee, the appellant in Writ Appeal No. 491 of 1969 is a temple represented by its trustee, the appellant in Writ Appeal No. 491 of 1969 is a proprietor of a hotel and the appellant in Writ Appeal No. 535 of 1969 is an Advocate practicing at Visakhapatnam. The two notifications issued by the Government Andhra Pradesh show that the land acquired is needed for a public purpose, to wit, for widening the main road at Visakhapatnam. Having regard to the urgency of the matter, the procedure prescribed in Section 5-A was dispensed with and a declaration was made under S. 6 of the Act. On receipt of notice under S. 9 of the Act, the appellants moved this Court under Article 226 of the Constitution contending that the procedure laid down under Section 5-A of the Act cannot be by-passed or dispensed with in respect of the lands notified, as they do not come within the meaning of arable or waste land specified n sub-section (1) of Section 17 of the Act. The applications were resisted by the respondents contending inter alia that the acquisition was for a public purpose viz,., to widen the main road in Visakhapatnam city and therefore the action taken under Section 17(4) of the Act cannot be challenged.

3. Mr. Justice Madhaya Reddy dismissed the petition holding that lands which from part of a building or house site in a town like Visakhapatnam could not be regarded as arable land, nor does not be regarded as arable land, nor does not notifications show that the Government treated them as waste or arable lands.

4. Mr. Satyanarayana appearing for the appellants strenuously contended waste, the provisions of Section 17(45) cannot be invoked and that so far as the appellants in writ appeals Nos. 490 and 535 of 1969 are concerned , a part of their buildings are acquired and as such it is not permissible to dispense with the procedure laid down in S. 5-A of the At.

5. There can be no dispute that the acquisition is for a public purpose. The expression :'public purpose', would, however, include a purpose in which the general interest of the community as opposed to the particular interest of the individual is directly and vitally concerned (See Somswanti v. State of Punjab), : [1963]2SCR774 . Whether there was urgency or not to acquire the land, it was for the Government to decide. It is a matter which is within he exclusive jurisdiction of the Government and the special power in cases of urgency exercised under S. 17(4) of the Act cannot be attacked. unless it could be shown that the action is either mala fide or that the Government had not applied its mind to the facts of the case before it invoked the provisions of Section 17(4). There is nothing to suggest fro the material placed before us that there is any kind of abuse of power by the Government or that t failed to apply its mind before it chose to dispense with the procedure prescribed under S. 54-A of the Act. The Government notified the acquisition at there instance of the Municipality, as the main road happened to be a narrow one and the traffic on that road was much more than it could take. Therefore, it cannot be said that the Government had not applied its mind before it issued the impugned notifications.

6. The learned counsel sought to contend that sub-section (4) of Section 17 of the Act does not contemplate dispensing with the procedure under S. 5-A of the Act, unless the lands sought to be acquired fall in the class of either arable or waste lands as specific in sub-section (1) and therefor the impugned notifications are illegal, inasmuch as they are issued beyond the powers conferred on the Government under Section 17 of Act. To appreciate the contention put forth by the learned counsel, it is necessary to notice the relevant provisions of the Act which have a bearing on the facts of the case.

7. The expression 'land' is defined in Section 3(a) and it includes 'benefit to arise out of land, and thins attached to the earth or permanently fastened to anything attached to the earth.' The material part of S. 17 reads:-----

'17 (1): In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, Sub-section (1) take possession of any waste or arable land need which shall thereupon vest absolutely in the Government, free from all encumbrances.

Explanation; This sub-section shall apply to any waste or arable land notwithstanding the existence therein of scattered trees or temporary structures such as huts, pandals or sheds.

(2) In the following cases, that it to say,

(a) XX XX XX (b) Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any kind-------------

(I) ..................................

(II) for the construction, extension or improvement of

(A)...................................................

(B)...................................................

(C).....................................................

(D).....................................................

(E).................................................... any record.

The Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances:

Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours'; notice of his intention to do so or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3).....................................................

(4) In the case of any land of which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4, sub-section (1)'.

8. The scope of sub-section (1) of Section 17 should not be mixed up or confused with the scope of sub-section (2) of Section 17. While sub-section (1) speaks of arable or waste land needed for public purposes, sub-section (2) speaks of any land.

9. The definition of 'land' is wide enough to take within its fold buildings also, as building is a thing permanently attached to the earth. The expression 'permanently' has been held to be used as an antithesis to 'temporarily' (See Secry of State for India v. Tarak Chandra, AIR 1927 PC 172). A Division Bench of the Sind Court construing the scope of the expression 'land' in Province of Sind v. Harkrishindas Gulabrai, AIR 1940 Sind 58, observed:

'For the purposes of the Act, land includes buildings and also trees and standing crops. The definition is wider than that of immoveable property under the Transfer of Property Act.'

10. As long ago as 1907 in Sub-Collector of Godavari v. Seragam Subbaroyadu, (1907) ILR 30 Mad 151, Justice Subrahmanya Ayyar and Justice Miller while dealing with the expression 'things attached to earth' observed:-

'There is no provision in the Act for the separate assessment of compensation for buildings apart from the land on which they stand, and, inasmuch as it is impossible to hold that they are liable to be acquired without compensation, it must be taken, that in Section 23 the word 'land' includes 'buildings Standing thereon'. IF so that must be, because buildings are 'things attached to the earth, and it is anomalous to interpret the same word as including one class of thins attached to the earth and excluding another.'

11. That was also the view expressed by the Bombay High Court in the Matter of Land Acquisition Act I of 1894, Govt. of Bombay v. Esufali Salebhai, (1910) ILR 34 Bom 618. As stated by Justice Chandavarkar the use of the inclusive verb 'includes' shows that the Legislature intended to lump together in one single expression viz., land, several things or particulars, such as the soil, the buildings on it, any charges on it, and other interests in it, all of which have a separate existence and are capable of being dealt with either in a mass or separately as the exigencies of the case arising under the Act may require.

12. The Allahabad High Court in Damodar Das v. Secy, of State, AIR 1939 All 106 pointed that for the purposes of the Act a bungalow is included in the definition of land.

13. The proviso to sub-section (2), will also bring out the fact that 'any land' referred to in the sub-section covers buildings or a part of the building. It should be remembered that for acquisition of land under sub-section (1), the land should be either arable or waste. It is not necessary for purposes of sub-section (2) that the land should be arable or waste: 'any land' irrespective of the fact whether it is waste or arable or whether there are any buildings thereon, it would be open to the Collector to acquire for purposes detailed in sub-section (2). The only requirement under sub-section (2) is that it should come within the meaning of Section 3(a) of the Act. That is the scope of sub-section (2). Sub-section (4) deals with the kinds of land referred to in sub-section (1) and also 'any land' referred to in sub-section (2). All that is necessary is that the Government should form an opinion that the matter is of an urgent nature so as to dispense with the procedure prescribed by Section 5-A of the Act. Sub-section (4) clearly refers to the provisions of sub-section (1), as also the provisions of sub-section (2) and therefore there is no merit in the contention that unless the land is arable or waste land, the special posers of the Government, in case of an urgency, under S. 17(4) cannot be exercised.

14. We, therefore, find no merit in the Writ Appeals and they are accordingly dismissed with costs. It will be, however, open to the Appellants if their buildings are affected to take such action as they may desire, having regard to the provisions of Section 49 of the Act. Advocate's fee Rs. 100/- in each.

15. Appeal dismissed.


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