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S. Padmavathi Amma and ors. Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 3306 and 4845 of 1977-I and 4859 of 1977-J
Judge
Reported inAIR1983Ker88
ActsKerala Land Acquisition Act, 1962 - Sections 3, 6, 42, 43 and 43(1); Constitution of India - Article 226
AppellantS. Padmavathi Amma and ors.
RespondentState of Kerala and ors.
Appellant Advocate S. Eswara Iyer,; E. Subramoni,; C.K.S. Panicker,;
Respondent Advocate Govt. Pleader and; P. Gopalakrishnan Nair, Adv.
DispositionPetition allowed
Cases ReferredChalakudy v. State of Kerala
Excerpt:
property - acquisition - sections 3, 6, 42, 43 and 43 (1) of kerala land acquisition act, 1962 - petitioner owner of suit land - respondent sought acquisition of suit land for purpose of setting film studio - state granted consent to acquisition on ground that acquisition was for public purpose and on condition that respondent firm must be converted into company - whether proposed acquisition of land can be called for public purpose - acquisition of land was for private purpose - private purpose cannot be regarded as public purpose merely because it is going to give employment to few persons. - motor vehicles act, 1988[c.a.no.59/1988] section 147 (1)(b)(i) [as amended in 1994]; [v.k. bali, cj, m.ramachandran & s. sirijagan, jj] third party risk gratuitous passengers - liability of..........due course, submitted report to the government favouring acquisition under part vii of the kerala land acquisition act, 1961 (in short 'the act'). the state government thereafter directed the 3rd respondent to examine in detail whether the purpose of acquisition institutes a public purpose. the 3rd respondent after notice to the concerned land owners including the petitioners, and after receiving their objections, submitted report to the 2nd respondent, board of revenue, with copy to the state government, suggesting that the purpose of the acquisition would constitute a public purpose. the 2nd respondent also, in due course, reported to the government recommending acquisition under part vii of the act. meanwhile, the petitioners sent representations to the board of revenue as well as.....
Judgment:

Bhat, J.

1. The common 4th respondent in these original petitions filed under Article 226 of the Constitution, is the Film Line Corporation, a partnership firm with two partners namely, Sivasankaran Nair and his wife. The petitioners in O. P. Nos. 3306/77, 4845/1977 and the minor son of the petitioner in O. P. 4859 of 1977 are owners in possession of certain lands in Sy. Nos. 495 and 496 of Cheruvakkal Village of Trivandrum District and these lands He adjacent to about 40 cents of land belonging to Sivasankaran Nair. The 4th respondent on 25-12-69 submitted an application to the State Government for allotment of a suitable land for the purpose of setting up a 'Film Studio cum House of Culture'. Apparently, the State Government did not respond to this request. On 22-10-1974, he submitted another petition to the State Government stating that in the 40 cents of land he has put up certain constructions required for studio complex and nine acres of land very near this plot is available for acquisition and immediate occupation and requested that the land may be acquired for the purpose mentioned. He sought acquisition of 2.55 acres in Sy. No. 495 and 1.45 acres in Sy. No. 496. The request was forwarded to Industries Department for processing. On 14-11-1974, the Regional Joint Director in the Department submitted a report to the Special Secretary of the Industries Department recommending the request with some changes in the identity of the lands to be acquired. His note was sent to the District Collector, Trivandrum, the 3rd respondent, for remarks. The 3rd respondent, in due course, submitted report to the Government favouring acquisition under part VII of the Kerala Land Acquisition Act, 1961 (in short 'the Act'). The State Government thereafter directed the 3rd respondent to examine in detail whether the purpose of acquisition institutes a public purpose. The 3rd respondent after notice to the concerned land owners including the petitioners, and after receiving their objections, submitted report to the 2nd respondent, Board of Revenue, with copy to the State Government, suggesting that the purpose of the acquisition would constitute a public purpose. The 2nd respondent also, in due course, reported to the Government recommending acquisition under Part VII of the Act. Meanwhile, the petitioners sent representations to the Board of Revenue as well as the Government raising objections to the proposed acquisition. On 18-5-1976, the State Government issued G.O.R.T. 536 of 1976 sanctioning or granting consent to acquisition of 3.70 acres in Sy. Nos. 493, 494, 495, 496 and 281 of Cheruvakkal Village, stating that the land is necessary for setting up a studio complex which is a public purpose and subject to certain conditions namely that the 4th respondent must be converted into a company and an agreement must be entered into as contemplated in law, an undertaking must be forthcoming to bear the entire expenses of land acquisition. An agreement was duly executed and undertaking was duly presented. The 4th respondent on 11-9-1975 submitted a requisition for acquisition of 3.55 acres of land in Sy. Nos. 495 and 496. The 3rd respondent, District Collector, on 14-7-1976 issued a notification under Section 3 (1) of the Act in regard to Sy. Nos. 496 and 496 and the same was published in the gazette dated 10-8-1976. Notification was also issued under Section 6 of the Kerala Survey and Boundaries Act, 1961. Individual notices under Rule 3 of the Kerala Land Acquisition Rules were also issued to the petitioners and others. The land owners submitted objections. In due course, they were served with notices under Section 5 of the Act and Rule 5 (b) of the Rules for an enquiry. On 8-1-1977, the 3rd respondent submitted the record of enquiry with a report to the 2nd respondent enclosing a draft declaration and agreement under Section 44 of the Act on the basis of G.O.R.T. 536 of 1976. On 2-3-1977, the 2nd respondent informed the 3rd respondent that the land acquisition proceedings cannot be taken under Part VII of the Act since the 4th respondent is not a company and it could be taken only under Part II of the Act in which case instructions in the Kerala Land Acquisition Manual require an agreement in Form No. XXIV. In due course, such an agreement was entered into. On 30-8-1977, the 2nd respondent issued proceedings making a declaration under Section 6 of the Act to the effect that the 2nd respondent was satisfied that the land in question was needed for a public purpose and overruling the objections raised by the petitioners. The declaration was also published in the gazette dated 11-10-1977.

2. In September, 1977, the three original petitions were filed, evidently without being aware of the proceedings dated 30-8-1977 of the 2nd respondent and seeking to quash the entire land acquisition proceedings as illegal. Subsequently, the original petitions were amended incorporating prayer to quash the Board proceedings dated 30-8-1977 and the declaration published in the gezette on 11-10-1977. In O. P. 3306 of 1977, two counter affidavits have been filed on behalf of respondents 1 to 3. Similar counter affidavits have been filed in the other petitions also. On behalf of the 4th respondent, partner Sivasankaran Nair has filed counter affidavits in all the original petitions.

3. Dr. Kochu Thommen J., before whom the original petitions came up for consideration referred the same to a Division Bench. The Division Bench, before which the cases came up for consideration and in which one of us (Poti Ag. C. J.) was a party, referred the cases for hearing by a Full Bench in view of the importance of the questions arising thereunder.

4. There has been a good deal of confusion in the approach made by the statutory authorities to the request of the 4th respondent for acquisition of land. For nearly 2 1/2 years, the request was being processed as if the proposed acquisition was to be under Part VII of the Act on behalf of a company. It was on that basis that on 18-5-1976, the Government, evidently acting under Section 42 of the Act granted consent to the proposed acquisition in G.O.R.T. 536 of 1976. It was on that basis that notification under Section 3 (1) of the Act was issued and further steps were taken. Enquiry under Section 5 of the Act was also conducted on that basis. When the records of enquiry were submitted to the 2nd respondent, Board of Revenue for the purpose of taking decision in regard to the public purpose under Section 6 of the Act, it was realised that the 4th respondent is not a company which can take advantage of the special provisions in Part VII of the Act. The 2nd respondent on 2-3-1977 directed the 3rd respondent to proceed under Part II of the Act, that is, under the general provisions of the Act. It was only thereafter that the 2nd respondent decided under Section 6 of the Act that the acquisition was for a public purpose as seen in the proceedings dated 30-8-1977. It is fairly conceded before us by learned counsel for the 4th respondent that the 4th respondent is not a company which can take advantage of the provisions of Part VII of the Act and that the validity of the land acquisition proceedings is to be decided only in the light of the general provisions in Part II of the Act. It should be noticed that while under general provisions in Part II of the Act an acquisition could be made where a land is needed for any public purpose, under Part VII of the Act land could be acquired only for the special purposes mentioned in Section 43 of the Act.

5. The main questions arising for consideration are whether the decision of the 2nd respondent, Board of Revenue that the proposed acquisition of land at the instance of the 4th respondent is for a public purpose is legally sustainable and whether the 2nd respondent has applied its mind and arrived at a decision on the question whether the particular land included in the declaration is needed for the public purpose and if so, whether such decision is legally sustainable.

6. The declaration published in the gazette of which a copy is Ext. P-8 in O. P. 3306 of 1977 reads as follows:

'Whereas the Board of Revenue is satisfied after considering the report made by the Collector under Sub-section (2) of Section 5 of the Kerala Land Acquisition Act 1961 (Act 21 of 1962) that the lands specified in the schedule below have to be acquired for a public purpose, the Board of Revenue hereby declares under Section 6 of the Act that the lands as specified in the schedule below and measuring 1 Hectare 31.44 acres, be the same a little more or less, are needed for a public purpose to wit; for setting up of a full fledged studio at Pongumoodu by the Film Line Corporation and under Section 7 of the Act, directs the Dy. Collector (LA) Collectorate Trivandrum to take order for the acquisition of the lands.

A plan of the lands is kept in the office of the District Collector, Trivandrum to take order for the acquisition of the lands.........'

7. The decision of the Board of Revenue is seen in the proceedings dated 30-8-1977, a copy of which is Ext. P-7 in O. P. 3306 of 1977. Ext. P-7 purports to consider the various objections raised by the several petitioners. On the question whether the purpose of acquisition is a public purpose, the only reference found is in para 8 as follows:

'...... The acquisition is for public purpose as already enquired into and decided by the government...............Since the government have already sanctioned the acquisition, the proceedings now taken under the K.L.A. Act satisfy the legal requirements for such acquisition.'

In para 9, it is stated as follows:

'9. The Board of Revenue has examined the matter in detail and found that the objections are not valid and that proposed land is required for a bona fide public purpose. The objections are therefore overruled. The Draft Declaration is approved and forwarded to the Superintendent of Government Press, Trivandrum for publication in the gazette urgently.'

8. A close reading of Ext. P-7 would show that in taking the decision under Section 6 of the Act whether the particular land is needed for a public purpose, the 2nd respondent Board did not apply its mind to any of the relevant considerations at all. It was guided solely by the circumstance that the purpose of acquisition had been earlier enquired into and decided by the Government. The reference evidently is to G.O.R.T. 536 of 1976 dated 18-5-1976.

9. We have already adverted to the fact that initially the request of the 4th respondent for acquisition of land was treated as a request by a company for acquisition of land for the purpose of the company, under Part VII of the Act. It was that proposal which was consented to by the Government in G.O.R.T. 536 of 1976. We would like to advert to the essential difference between the purposes of acquisition in Parts II and VII of the Act. Section 3 of the Act empowers the Government or the Collector to issue a notification to the effect that land in any locality within the State of Kerala or within the jurisdiction of the Collector, as the case may be, is needed or likely to be needed for any public purpose. Thereupon persons interested in the land notified under Section 3 (1) may prefer objections and the Collector after hearing the objectors and making such further enquiry as he deems necessary, has to make a report or reports to the Government, where the notification under Section 3 (1) was published by the Government and the Board of Revenue where the notification was published by itself under Section 5 of the Act. The report must contain the recommendations, and the record of proceedings. Section 6 enjoins the Government or the Board of Revenue, as the case may be, to consider the report for the purpose of satisfying itself that any particular land is needed for a public purpose and on such satisfaction, the authority has to make a declaration to that effect and the declaration has to be published in the gazette. Thus, it may be seen that it is only for what could be regarded as a public purpose that acquisition could be resorted to under these provisions in Part II of the Act.

10. Part VII of the Act deals with acquisition of land for companies. Section 42 requires the previous consent of the Government and the execution of an agreement before putting the provisions of Sections 6 to 39 in force. Section 43 requires that consent shall not be given unless the Government is satisfied either on the report of the Collector under Section 5 (2) or by an enquiry held as provided therein that the purpose of acquisition is of a nature falling under Clauses (a), (aa), (b) and (c) of Section 43 (1). Purposes referred to in these clauses are erection of dwelling houses for workmen employed by a Company or for the provision of amenities directly connected herewith, construction of building or work for a Company engaged in any industry or work which is for a public purpose provided the building or work is meant to subserve the public purpose of the industry or work, construction of work which is likely to prove useful to the public or a purpose calculated to promote and develop agriculture, industry or co-operation. A particular purpose may be a purpose contemplated under one or the other of these clauses of Section 43 (1); at the same time, it may or may hot be a public purpose as contemplated under Sections 3 and 6. Satisfaction that a particular purpose falls within the scope of Section 43 (1) cannot lead to satisfaction that the purpose is a public purpose under Section 3 (1) or Section 6. Whether in a given case, the purpose of acquisition is a public purpose is a matter for the statutory authority to decide in the light of the relevant materials and attendant circumstances.

11. The sanction or consent given by the Government under G. O. R. T. 536 of 1976 is a consent given under Section 42 of part VII of the Act. It may be presumed that in giving such consent the Government was satisfied that the purpose of acquisition falls under the purposes mentioned in various sub-clauses in Section 43 (1) of the Act. The question whether dehors the purposes mentioned in these sub-clauses the purpose of acquisition is a public purpose under Part II of the Act did not arise for consideration of the Government before passing G. O. R. T. 536 of 1976; therefore this government order cannot be the basis for satisfaction regarding 'public purpose' under Sections 3 or 6 of the Act.

12. The authority to grant consent under part VII of the Act is the Government, The authority which is to arrive at satisfaction and make a declaration under Section 6 of the Act need not necessarily be the Government. It is the Government which has to discharge this function where the notification under Section 3 (1) is issued by the Government. However, this function has to be discharged by the Board of Revenue in a case where the notification under Section 3 (1) of the Act is issued by the Collector. This is the scheme found in Sub-section (2) of Section 5 read with Section 6 of the Act. In the present case, the notification under Section 3 (1) of the Act was issued by the Collector and not by the Government. Therefore, the statutory authority to which the Collector must submit his recommendations and record of proceedings under Sub-section (2) of Section 5 and the authority which is to be satisfied about the public purpose and to make a declaration under Section 5 is the Board of Revenue and not the State Government. It is the Board of Revenue which should have applied its mind to the question whether the purpose of acquisition is a public purpose. It is the Board of Revenue which should have been satisfied in regard to this aspect of the matter. In arriving at such satisfaction, the Board of Revenue has to be guided by the application of its own mind in regard to the materials and circumstances existing in the case. Where it feels, bound to follow, the decision taken by the Govt. in regard to the matter, it cannot be said that the statutory authority has either applied its mind or has by itself arrived at satisfaction. In such a case, the 'satisfaction' is not satisfaction of the Board of Revenue at all. It is the satisfaction of the Government and not that of the Board of Revenue. At best, it can be regarded only as satisfaction of the Government adopted by the Board without an independent examination or application of mind. Such is not the satisfaction contemplated in Section 6 of the Act. We therefore hold that the 2nd respondent, Board of Revenue, has not arrived at any satisfaction as required under Section 6 of the Act. For this reason, the proceedings of the Board dated 30-8-1977 and the declaration published in the gazette dated 11-10-1977 are illegal and deserve to be quashed.

13. For another reason also, we are satisfied that the impugned proceedings and declaration are without legal effect. We have already adverted to the substance of Sections 3, 5 and 6 of the Act. The material part of Section 3 reads thus:

'(1) Whenever it appears to the Government or to the Collector that land in any locality within the State of Kerala or within the jurisdiction of the Collector, as the case may be, is needed or is likely to be needed for any public purpose, ......'

The relevant portion of Sub-section (2) of Section 3 reads as follows:

'Thereupon, it shall be lawful for any officer, either generally or specially authorised by the Government or the Collector and for his servants and workmen.--

(a) to enter upon and survey and take levels of any land in such locality;

(b) to dig or bore into the sub-soil;

(c) to set out the boundaries of the land proposed to be taken and the intended time of the work, if any, proposed to be made thereon;

(d) to mark such levels, boundaries and line by placing marks and cutting trenches;

(e) where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; and

(f) to do all other acts necessary to ascertain whether the land is adapted for such purpose; (Emphasis. Supplied)

The relevant portion of Section 5 reads asfollows:--

'5. Hearing of objections.-- (1) Any person interested in any land which has been notified under Sub-section (1) of Section 3 as being needed or likely to be needed for a public purpose may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality as the case may be.

(2) Every objection under Sub-section (1) shall be made to the Collector in writing and the Collector shall give the objector an opportunity of being heard either in person or by counsel and shall, after hearing all such objections and after making such further enquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Sub-section (1) of Section 3, or make different reports in respect of different parcels of such land.-

XXX XXX XXX XX'

14. The material part of Sub-section (1) of Section 6 reads thus:--

' (1) Subject to the provisions of Part VII of this Act, when the Government or the Board of Revenue are or is satisfied after considering the report made by the Collector under Sub-section (2) of Section 5 that any particular land is needed for a public purpose, a declaration shall be made to that effect..................'.

15. Section 3 refers to 'the land in any locality' and 'land proposed to be taken'. Section 5 entitles any person interested in any land notified under Sub-section (1) of Section 3 as being needed or likely to be needed for a public purpose to object to the acquisition of 'the land or of any land in the locality'. The Collector is to hear the objections, conduct enquiry and make a report or reports to the Government or Board of Revenue as the case may be in respect of the notified land. Under Section 6, the statutory authority (Government or Board) is to be satisfied that 'any particular land is needed for a public purpose'. It is not sufficient that the statutory authority is satisfied that 'any land in a locality' or 'land in any locality' is needed for a public purpose. The satisfaction to be arrived is that 'any particular land' is needed for a public purpose. In other words, before issuing the declaration under Section 6, the statutory authority must be satisfied that the particular land is needed for a public purpose.

16. It is only natural that acquisition of private land for a public purpose should be based on satisfaction of the statutory authority that the particular land is needed for such purpose. This is all the more so where acquisition is sought to be made at the instance not of the Government but of a private individual or company. A private party may have several reasons for suggesting a particular land to be acquired for starting an industry or Film Studio or the like. It may be that the nature of the undertaking, industry or institution to be started requires a particular type of land or requires land in a particular kind of locality or requires land in a location with particular advantages; it may be that the industry, undertaking or institution should be housed in a locality which is easily accessible to public transport system. Or river, water courses or railway line. Or it may be that what is needed is land at a high altitude or low attitude. Nearness to sea may be necessary in certain cases. If the necessary advantages are available in several localities, it may have to be considered why a particular locality is to be preferred to the others. Even where a particular locality is preferred, the question may arise whether any particular land is necessary or any land in that locality would suffice for the purpose. Whether a particular piece of land by itself enjoys certain advantages which would be helpful to the industry, undertaking or institution proposed to be started is also a matter for consideration.

17. On the other hand, it may be that the private party who suggests a particular land in any locality for acquisition is guided by extraneous and irrelevant reasons. It may be his intention is to derive private gain or profit by proposing a particular land in a particular locality for acquisition. It may be that he is actuated with the motive of depriving certain persons of their land out of personal ill-will or other reasons. It may be that his main concern is to expand his own holding by seeking acquisition of neighbouring lands for his own enjoyment or private gain though the location of the proposed industry, undertaking or institution in the particular land may not have any particular advantage or desirability. It may be that his choice of land or locality is actuated by a mala fide motive. All these are matters for consideration at the hands of the statutory authority before it could arrive at the satisfaction that a particular land is needed for a public purpose. It is not sufficient that the statutory authority is satisfied that the proposed acquisition is for a public purpose. It must be further satisfied that the acquisition of the particular land is for a public purpose.

18. It has been suggested at the bar that the fact that the requisitioning party in this case the 4th respondent) is guided by extraneous reasons or even mala fides for choosing a particular land would not matter so long as it cannot be said that the statutory authority acted mala fide. In this connection, reference is made to the observations in Forana Church, Chalakudy v. State of Kerala, (1971 Ker LT 733) : (AIR 1972 Ker 143). In that case, land was sought to be acquired for the purpose of expansion of the premises of a private school. It was contended before this Court that the motive of the school authority was mala fide. The school authority was the owner of the land in question and it was outstanding with a tenant who obtained a purchase certificate. It was contended that being worsted in the proceeding before the Land Tribunal, the school authority had suggested the acquisition of the particular land with the idea of driving out the erstwhile tenant and the motive was mala fide. A Division Bench of this Court dealing with this contention observed as follows:

' Even if the motive of the church was mala fide, that would nor vitiate Ext. P3, unless that motive has been shared by the quasi-judicial authorities. There is no proof that the Collector or the Board of Revenue which passed Ext. P3 was actuated by mala fides. In the absence of any such proof we do not think that there was any justification in quashing Ext. P3 merely on the basis that the motive of the church was mala fide'.

With great respect, we are unable to agree with this observation. We are of opinion that the observation is too wide tin nature. It is difficult to compartmentalise the motive of the requisitioning party and the motive of the statutory authority in the manner in which it was sought to be done in the above decision. It may be that the action of the requisitioning party is mala fide and yet the decision of the statutory authority is free from mala fides; it may also be that the mala fide character of the action of the requisitioning party might have affected the decision of the statutory authority. Whether it is so, is a matter for consideration of the court exercising jurisdiction under Article 226 of the Constitution. If the mala fide nature of the action is urged before the statutory authority, the statutory authority has to apply its mind in regard to that question also and it will be open to the High Court to examine the decision of the statutory authority in that regard too.

19. We are satisfied that the Board of Revenue did not apply its mind to the relevant considerations before taking a decision under Section 6 of the Act; it was guided solely by what it erroneouly took to be the decision of the government in G. O. R. T. 535 of 1976. It did not address itself to the questions legitimately arising for consideration before arriving at satisfaction that the purpose of acquisition of the land is a public purpose. The impugned proceeding dated 30-8-1977 of the Board and the declaration made by the Board are quashed.

20. On behalf of the petitioners it has been argued that the real purpose of acquisition in this case is a 'private purpose' in the guise of a 'public purpose', that such a private purpose cannot be regarded as a public purpose merely because the proposed Film Studio Complex is likely to give employment to a few persons; otherwise, it is contended, any private individual seeking to open a shop, hotel or other enterprise for his private gain can invoke Part II of the Act by claiming that the proposed enterprise will create a few jobs. We are not expressing any view in regard to this contention since even otherwise, the petitioners are entitled to succeed in these petitions.

The Original Petitions are allowed as indicated earlier. In the circumstances, we direct the parties to bear their costs.


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