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The Forane Church Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberW.A. No. 626 of 1969
Judge
Reported inAIR1972Ker143
ActsKerala Land Acquisition Act, 1962 - Sections 3 and 5; Land Acquisition Act, 1894 - Sections 3
AppellantThe Forane Church
RespondentThe State of Kerala and ors.
Appellant Advocate Narayanan Potti, Adv.
Respondent Advocate Govt. Pleader and; V.K.K. Menon, Adv.
DispositionAppeal allowed
Cases ReferredIn Mohammed Noohu v. State.
Excerpt:
property - public purpose - sections 3 and 5 of kerala land acquisition act, 1962 and section 3 of land acquisition act, 1894 - appeal against order allowing quashing of impugned order directing acquisition of land in question - acquisition of land was to meet requirement of school for larger area for its expansion in view of growing educational need of locality - such acquisition comes under ambit of public purpose - held, appeal allowed order of trial court set aside. - - the report of the collector would indicate that he was satisfied for the reasons given there that acquisition of this property was necessary to satisfy the requirements of the school......church approached the 3rd respondent, with a prayer for acquisition of the land under the kerala land acquisition act (for short the act) for the purpose of the school. a notification under section 3(1) of the act was published in the gazette on the 21st november 1967 for acquiring the land for a public purpose, namely for the purpose of st. mary's l. p. school. ex. p1 notice was also served on the petitioner. she filed an obiection. under section 5 of the act and it was inquired into and the collector sent a report to the board of revenue recommending the acquisition. the board of revenue thereafter reiected the obiection of the petitioner by ex. p-3 order. 2. the first contention before the learned single judge was that the motive of the church was mala fide in requiring the.....
Judgment:

Mathew, J.

1. This appeal is directed against an order of a learned Single Judge allowing a writ petition praying to quasn Ext. P3 order passed by the Board of Revenue on the 7th August, 1968, overruling the objection of the writ petitioner (hereafter called the petitioner) to the acquisition of a plot of land belonging to her comprised in S. No. 455/3 and 456/3 in Chalakkudy village. The acquisition was for the purpose of St. Mary's L. P. School, a school owned and managed by the Forane Church, the 4th respondent. The land in question originally belonged to the church and the petitioner was a tenant under the church. When the Land Reforms Act (Act 12 of 1964) came into operation the petitioner filed applications O. A. 1055 and 1056 of 1965 to purchase the right, title and interest of the landlord. Although the church opposed the applications they were allowed. The church appealed against the decision, but the appeal was dismissed; and thereafter, the church filed revisions beforethis court. The revision petitions were also dismissed.

It was after this that the church approached the 3rd respondent, with a prayer for acquisition of the land under the Kerala Land Acquisition Act (for short the Act) for the purpose of the school. A notification under Section 3(1) of the Act was published in the Gazette on the 21st November 1967 for acquiring the land for a public purpose, namely for the purpose of St. Mary's L. P. School. Ex. P1 notice was also served on the petitioner. She filed an obiection. under Section 5 of the Act and it was inquired into and the Collector sent a report to the Board of Revenue recommending the acquisition. The Board of Revenue thereafter reiected the obiection of the petitioner by Ex. P-3 order.

2. The first contention before the learned Single Judge was that the motive of the church was mala fide in requiring the acquisition of the property for the reason that the church was worsted in the fight before the Land Tribunal, and that it was to wreak its vengeance that the church approached the authorities and managed to get the proceedings for acquisition initiated. The learned Judge was of the view that the proceedings were vitiated by mala fides and that it was to wreak vengeance and to deprive the petitioner of her land that the church initiated the proceedings and not for the purpose of extending the area of the site of the school.

3. The primary school in question was established more than 70 years back. The area of the site of the school is only 47 1/2 cents. The school was originally started in S. No. 504/3. Thereafter a section of the school was moved to a plot of land in S. No. 498. The school, therefore, is now located in two places.

4. The learned Judge inferred mala fides from the following circumstances: (1) that for all these years there was no attempt on the part of the management to acquire compulsorily the land for the purpose of the school; that the notification under Section 3(1) was published on 21st November 1967 immediately after the petitioner obtained the certificate of purchase from the Land Board on the 16th and 17th of October 1967; that the land was required for upgrading the lower primary school into an upper primary one but that Government has not sanctioned the upgrading of the school, and that it was not necessary to upgrade the school in view of the large number of schools in the locality; that alternative sites were available in the vicinity; and that the land sought to be acquired is three or four feet lower in level than the plots on which the school is situate.

5. The ultimate finding of the learned Judge on the question of mala fides is that

'taking all these circumstances I feel convinced that the attempt of the church was to deprive the petitioner of the land attached to her homestead which was purchased from the church itself taking advantage of the provisions of Act 1 of 1964. I also feel that the attempt of the church is mala fide to deprive a tenant, who only exercised a legal right conferred on her by the Land Reforms Act'.

6. We think that this finding is not sufficient to vitiate Ext. P-3 on the ground of mala fides. The Collector inquired into the objections, took evidence and inspected the site before he drew up his report. That enquiry was quasi judicial in character. The report of the Collector would indicate that he was satisfied for the reasons given there that acquisition of this property was necessary to satisfy the requirements of the school. The alternative sites pointed out by the petitioner in her objection were either unavailable or not suited to the purpose. Even if the motive of the church was mala fide, that would not vitiate Ext. P-3, 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. P-3 was actuated by mala fides. In the absence of any such proof we do not think that there was any justification in quashing Ext. P-3 merely on the basis that the motive of the church was mala fide. As we said, the proceeding which culminated in Ext. P-3 was quasi-judicial in character and unless there was evidence to show that there was mala fides on the part of the authorities namely the Collector or Board of Revenue Ext. P-3 could not have been quashed.

7. Quite apart from this, the main ground on which the court found mala fides was that the property was sought to be acquired for upgrading the school, but that had not been sanctioned by Government. It is clear from the records that the acquisition of the property was sought only for the expansion of the existing school and not for upgrading it. In the supplementary statement filed by the church before the third respondent this is made clear. The petitioner had also no case either in her objection before the Collector or in the writ petition that the land was to be acquired for the purpose of upgrading the school. The statement in Ext. P-3 which would suggest that the land was to be acquired for upgrading the school was based on a mistaken reading of the report of the Collector. The statement in the counter affidavit that the church had an idea of upgrading the school does not mean that the land was sought to be acquired for upgrading theschool. As we indicated, the Collector after the enquiry reported that the alternative sites pointed out by the petitioner are not suitable and that the property in question is suited to the purpose. We do not think that it was open to this Court to make a comparison of the various sites and say that some other site could have been chosen, and to infer mala fides on the part of the authorities on that basis.

8. The next question for consideration is whether the acquisition was for a public purpose. The learned Single Judge was of the view that there was no public purpose. Rule 1 of Chapter IV provides that lower primary and upper primary schools should have a site area of .4 to .8 hectare. Rule 9(1) of Chapter V of the Kerela Education Rules provides that:

'No permission to open a new school shall be granted: if the applicant does not possess absolute ownership or right to be in exclusive possession for a period of not less than six years over the site, buildings and other properties of the school'

The learned Judge said that Government cannot close their eyes to the provision of Rule 9 of Chapter V and acquire land to enable the church to upgrade its school. In other words the view of the learned Judge was unless a school was already in possession of the area as required by the rule, no question of upgrading the school arises and so there was no public purpose in acquiring the land for enabling the school to be upgraded. We have already said that the land was acquired for the existing school and not for upgrading it. But counsel for the petitioner-appellant said that the school was established at a time when there was no rule that a lower primary school should have a site area of 1 to 2 acres, that under Section 3(4) of the Kerala Education Act all existing schools shall be deemed to have been established under that Act, that the educational authorities could not have insisted that the school must have that area and so there was no public purpose in acquiring the land in order to enable the school to have the area of land fixed by Rule 1 of Chapter IV.

The school in question has expanded considerably after the Kerala Education Act came into force. It had 16 divisions and 700 pupils at the relevant time and the area available namely 47 1/2 cents was quite inadequate to meet the needs of the pupils. It was to meet the growing educational need of the public that the school had to accommodate and give education to 700 pupils. As to what is public purpose, Venkatarama Iyer. J. in Thambiran v. State of Madras. 1952-7 DLR 275 = (AIR 1952 Mad 756) observed:

'The result of the authorities may be thus summed up: Acquisition of property for public purpose under Art 31(2) includes whatever results in advantage to the public. It is not necessary that It should be available to the public as such. It might be in favour of individuals provided they are benefited not as individuals but in furtherance of a scheme of public utility'.

In State of Bombay v. AH Gulshan. AIR 1955 Bom 810, the Court observed:

'Acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a public purpose, though it will not strictly be a State or Union purpose'.

In Mohammed Noohu v. State. 1952 Ker LT 498 - (AIR 1952 Trav-Co 522) this Court observed:

'There was the older and stricter view that unless the property acquired was dedicated for the use of the public at large or a considerable section thereof, it would not be a public use. Vide Nichols on Eminent Domain, 1950 Edn. Vol. III, page 430. But the modern and more liberal view, is that it is not an essential condition of public use that the property should be transferred to public ownership or for public user and that it would be sufficient if the public derives advantage from the scheme. According to this latter view, it is no objection to the validity of an acquisition that it is in favour of a private corporation or of individuals, provided the acquisition results in public advantage'.

We think that the acquisition of the land to meet the requirement of the school for a larger site area in view of its expanding activities to meet the growing educational need of the locality was far, a public purpose.

9. We set aside the order of the learned Single Judge; and allow the appeal; but without any order as to costs.


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