Skip to content


S. Sivaprakasa Mudaliar Vs. the State of Madras Represented by Special Dy. Collector for Land Acquisition, City Improvement Trust Scheme and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberWrit appeal No. 302 of 1962
Judge
Reported inAIR1964Mad115
ActsLand Acquisition Act, 1894 - Sections 4, 4(1), 5A, 6 and 17(4)
AppellantS. Sivaprakasa Mudaliar
RespondentThe State of Madras Represented by Special Dy. Collector for Land Acquisition, City Improvement Trus
Appellant AdvocateN. Arunachalam and ;T.S. Rangarajan, Advs.
Respondent AdvocateSpl. Govt. Pleader
DispositionAppeal dismissed
Cases Referred and Naga Hills Tea Co. Ltd. v. State of Assam
Excerpt:
.....income groups as well. 1. that the purpose for which the land is acquired is not a bona fide public purpose (2) that the particular land notified is not the best adopted to the purpose intended or that its area is greater than what is actually required for the purpose and [i) that the acquisition of the land or any land, in the locality is not desirable or expedient. the government have always the power to abandon an acquisition in relation to any part of the land, if the government are satisfied with the reasons advanced, against the acquisition even at this stage, they have the power to and can abandon the acquisition......iyer, c.j.1. on 17th september 1958, the state government by a under section 4(1) of the land acquisition act to acquire a large tract of land measuring about acres in kodambakkam area for the purpose of rehabilitation of the slum dwellers in kanniappanagar and other slum areas in the city of madras. by the same notification and indeed as part of it, the government in exercise of their powers under section 17(4) of the act, dispensed with the provision of section 5-a of the act as the proposed acquisition, their opinion was an urgent one. the notification mentioned above was in due course followed by publication under section 6. that was on 26th november 19bb. sometime later notices were issued to the various owners under section 9(3) calling upon them, to file their claims for.....
Judgment:

S. Ramachandra Iyer, C.J.

1. On 17th September 1958, the State Government by a Under Section 4(1) of the Land Acquisition act to acquire a large tract of land measuring about acres in Kodambakkam area for the purpose of rehabilitation of the slum dwellers in Kanniappanagar and other slum areas in the City of Madras. By the same notification and indeed as part of it, the Government in exercise of their powers Under Section 17(4) of the Act, dispensed with the provision of Section 5-A of the Act as the proposed acquisition, their opinion was an urgent one. The notification mentioned above was in due course followed by publication Under Section 6. that was on 26th November 19bb. sometime later notices were issued to the various owners Under Section 9(3) calling upon them, to file their claims for compensation. it appears that there were some objections to the acquisition before the Government and it took some time for them to consider and dispose of the same, the appellant owns 2.44 acres of wet lands in S. no. 154 in the area proposed to be acquired; that was subject 10 a mortgage created by him in favour of one jambunnga Mudaliar. Like other owners of land in the locality cut appellant filed his claim for compensation. compensation was fixed by the Special Deputy Collector for land acquisition, who by his notice dated 18th January 1961 intimated his award to the mortgagee that a sum of its. 1,6836 had been awarded as compensation for 2.44 acres of land in s. No. 154. soon thereatfer the appellant was called upon to deliver possession of the property, it was at that stage, i. e. nearly three years after the notification under Section 4(i) of the Act, that he and a number of other owners tiled applications under Article 226 or the Constitution to this court to quash the notification relating to the acquisition of the land.

2. The substantial ground urged in support of the applications was this : the intended purpose of the scheme had failed as the slum dwellers for whose Benefit the lands were sought to be acquired refused to move into the scheme area; the State Housing Board in whom the lands stood vested proceeded however to allot bounding sites in the area to persons belonging to the low and middle income groups that amounted to a diversion of the original purpose which the Government had no authority to 10.

3. It is necessary at this stage to digress a little into the other connected proceedings relating to this acquisition. During the time when the present applications were pending W. P. Nos. 1094 of 1959 and 151 and 501 of 1960 which related to certain properties covered by the same notification, came up for disposal before veeraswami J. who quashed a part of the notification, namely, that which purported to be Under Section 17(4), dispensing with the applicability of Section 5-A of the Act.

4. The learned Judge, however, declared that the rest of the notification would be valid. Having due regard to that decision the Government intimated the court in these cases that they are willing to withdraw that portion of the notification which applied the emergency provisions Under Section 1/(4) of the Act. In so doing, it cannot be said that the Government had sufficient regard for what had transpired already namely, the publication of the various notifications, the passing of the award etc. However, that withdrawal meant that the Government had an open mind on the question whether the acquisition was for a pubic purpose, presumably they were willing to consider all those objections that could be filed under S. S-A. If that were to be so, and if as a result of the representations the Government were to hold that the original acquisition was not for a public purpose what would happen to all that had been done i. e., what would be the position of the persons who had applied for allotment of sites, in that area, obtained them and spent monies thereon are matters which do not appear to have been considered. that is only by the way.

5. To resume the narrative, it is clear from the petitions tiled in the case that were was no controversy about one fact, namely, that on the date when the notification Under Section 4(1) of the Act was published, there was a genuine need to rehabilitate the slum dwellers that would undoubtedly be a public purpose, mere was no doubt that the Government believe that the slum dwellers should avail themselves of the opportunity of having setter houses In healthier surrounds. It has been stated in the counter affidavit filed By the Special Deputy collector for Acquisition, that the intention of We government was not to confine the allotment under the scheme to slum dwellers alone. The notification does not say anything specific about it.

6. Sometime after the acquisition, the slum dwellers exhibited an initial reluctance to leave their existing domes but subsequently there appears to have been a gradual change in their attitude, it is said, that almost an the families in Kanniappanagar nave moved into We scheme area now. But the property sought to be acquired was more than sufficient to meet the needs of the residents of Kanniappanagar. the object of the scheme was also to provide better houses for persons living in other slum areas in the city. therefore, the Government decided to otter sites in the area to persons of the low and middle income groups, who but for this concession would nave to reside in crowded places and in unhealthy surroundings, some of which could perhaps be termed as scarcely better than we so-called slums.

7. It has been contended on behalf of the petitioners that as the admission of the members of the low and middle class income groups into We scheme area was not the avowed object of the acquisition, the attempt of the Housing Board to benefit persons of those groups would amount to a diversion from the original purpose and that, therefore, We entire acquisition would be regard as invalid. Veeraswami J. did not consider it necessary to decide whether We contentions of the appellant were well founded or not. The learned judge accepting We concession made on behalf of the Government, quasnea that part of the notification which dispensed with me obligation of conforming to the provisions of Section 5-A leaving the petitioners before him with the opportunity of making their objections to the acquisition under that section to the concerned authority. therefore We substantial question raised as to the validity of the acquisition proceedings is still undecided. only the notification, in so tar as it dispensed with the obligation under Section 5-A was struck down as invalid. The rest of the notification which came within the ambit of Section 4(1) was retained.

8. The appellant feeling aggrieved by this order has filed the present appeal.

9. Mr. Arunachaiam appearing for the appellant has contended that the learned Judge was in error in not deciding the question as to whether in view or the changed circumstances We notification in question could at all be regarded as valid the argument being that although the original purpose might be a public one, that purpose having been found to be impossible of fulfilment by reason of we unwillingness of the slum dwellers to migrate to the scheme area, necessity for the acquisition has ceased and that the further proceedings therein should be regarded as illegal. Support for this contention was sought in the decision R. H. Galloway v. Mayor and Commonality or London, (1866) 1 H. L. 34. In that case a railway company was authorised to take compulsorily lands of any person for a particular purpose. It was held that the company could not compulsorily acquire property albeit it made due compensation to the owner, for another object, mat was a case where a private body was authorised by Parliament to acquire property for a specified purpose, it could not obviously exercise that power for any other purpose of a collateral kind. That decision itself recognises that the case will be different where for example an existing public body such as a corporation of a city is ensure by the legislature with' the duty of making public improvements in its city. In such a case it has Been held that the powers entrusted to it for such purposes will set be subject to a strict and restrictive construction

10. In the present case the object of acquisition was to provide housing accommodation for in slums. That object could not be said to be where instead of settling the slum dwellers alone there some other persons who were equally in need of better housing accommodation were provided with house sites to the scheme area. In Parshottam Jethalal v. Secretary of State, : AIR1938Bom148 a certain land was acquired toe a particular scheme which was later on abandoned and therefore a revised scheme was introduced it was held that the scheme remained essentially the same. Broom-field J. observed thus:

'The Land Acquisition Act postulates a public as to the existence of which the Government is the I will assume for the sake of argument without or deciding that the public purpose must remain substantially the same throughout the proceedings, that was so] in the present case. The Act nowhere postulates (sic) in the scheme by means of which the public object is to be carried out. All that is legally necessary is that we lands which: it is intended to acquire for a public purpose should be notified Under Section 4 and then Under Section 5 land acquisition Act. that has been done'.

11. We are unable to accept the contention that is urged on behalf of the appellant that the grant of Muse sites in the scheme area to members of the low and middle income groups amounted to a diversion of the original object of the scheme. me original notification no doubt stated that We purpose of the, Government in teaming the property was to provide house sites for housing the slum dwellers in Kanniappanagar and also slum dwellers to the other parts of the city. The expression 'slum dwellers though in popular parlance has acquired some special meaning, namely, those who are economically and backward and who huddle themselves together in unhealthy surroundings, the term as such has no such technical meaning. The word 'slum' in its, true import means a 'street or alley situate in a crowded distinct of a town or city and inhabited by people of in low class of by the poor'. It may be that in some cases the slum area may be a thickly populated tint and of a squalid and wretched character, but essentially the wrong slum is of wide import including within it a crowded place in a city inhabited by the poor. Actually whenever there to scarcity of accommodation, one not unoften finds, that several of the persons belonging to the low and middle income groups, have of necessity to take up their abodes. its very crowded parts of the locality which can be said to be no better than slums. mere is nothing very wrong to regard them, as slum dwellers in a sense. The in question being one intended for a beneficent must receive a liberal construction. It will therefore include within the object of providing accommodation for persons belonging to the low and middle income groups as well.

12. mere has therefore, bean no diversion diversion of one purpose on the part of the Housing Board in among house sites to persons belonging to the member of cases groups.

13. The contention appears to be wrong even factually. In the counter-affidavit tiled by tile Special Deputy Collector for Land Acquisition, it has been stated that almost all the residents of Kanniappanaga, have come to take up their residence in the scheme locality, in view of this also, we are of the opinion that there is no substance in the contention that there has been a diversion of the original purpose on the part of the Housing Boara proceeding to grant house sites to persons belonging to the low and middle income groups in the city.

14. Mr. Arunachalam next contended that the learned Judge should have struck out the entire notification instead of confining his direction to; that Under Section 17(4) alone for the reason that what remained win not Be in accordance with the provisions of the statute, me learned Judge has held, and on that point there is no dispute on the part of the Government, that the portion of the notification dispensing with the provisions of Section 5-A was invalid, that portion is separable from the rest of the notification. There is authority to show that in a similar situation, that is where the original notification is a single one containing within itself a notification Under Section 4(1) and also an order Under Section 17(4) dispensing with the provisions of Section 5-A, the invalidity of the latter part will not vitiate the validity of the former one i. e., that part of the notification which came Under Section 4(1): Vide Ramabranmam v. State of Andhra, AIR 1957 AP 450; Madhavi Ammal v. Revenue Divisional Officer,. Kozhikode, : AIR1961Ker116 and Naga Hills Tea Co. Ltd. v. State of Assam, AIR 1962 Ass 132.

15. The argument before us did not proceed on my theory of in sever ability. What was said was that the striking out of that part of the notification which related to the obligation Under Section 5-A, severable it might be, left behind it, a notification Under Section 4(1) which could not is any sense be said to be in accordance with the statute, and that therefore, the former notification should also be struck down. The contention is elaborated thus: Under Section 5 any person interested in any land which has been notified Under Section 4 and sub-section (1) may, within; thirty Says after the issue of the notification, object to the acquisition of the land. The right, so to object, is a statutory one given to the individual to be exercised within thirty days of the notification. A proper notification Barter Section 4(1) should, therefore, enable the individual concerned to tile his objections Under Section 5-A within thirty days from the date of publication of such notification. In the present case by reason of the Government order Under Section 17(4) which was part of the original notification, Section 5-A was expressly dispensed with. in other words the person aggrieved had no right to state his objections in the manner provided for under that section. if three years after the notification the urgency part 01 it alone were to be struck down, it was argued, the person aggrieved would have no right to put forward his objections as more than thirty days had already elapsed from the date of the original notification Under Section 4(1). in under words, it was contended that in order that the statutory rights given to the owner of the land Under Section 3 a might be effective, it would be necessary that there should be a fresh notification Under Section 4(1) after which alone the owner will have an opportunity within thirty days thereof to tile his objections. If on the contrary, the part of the notification Under Section 4(1) was retained, the benefit conferred Under Section 5-A could become illusory.

16. The learned Special Government Pleader did not accept this contention. He argued that the filing of the objections Under Section 5-A could be made within thirty days after the substance of the notification has been published by the Collector and it need not necessarily be within thirty days of the actual publication of the notification Under Section 4(l). the former could be done even now. In the view we are taking of the case, it is unnecessary to consider this contention. It must be observed that this objection to partial striking out of the notification was not raised before the learned Judge. Indeed no objection to the acquisition: or even as to the invalidity of that part of the notification regarding the applicability of Section 1(4) was taken by the appellant all these years. It is practically conceded that the original purpose for which the land was acquired is a public one.

17. Generally speaking the hinds' of objections that would be available to an owner of the land whose land is proposed to be acquired Under Section 5-A will be those mentioned in Board's Standing Order MO rule 9, namely:

'1. that the purpose for which the land is acquired is not a bona fide public purpose (2) that the particular land notified Is not the best adopted to the purpose intended or that its area is greater than what is actually required for the purpose and [i) that the acquisition of the land or any land, in the locality is not desirable or expedient.'

18. So far as the first of the three categories of objections is concerned, there is no denial that the purpose of the acquisition was a bona fide public one. the other two objections available to the owner of the land can be heard at any stage, the government nave now intimated their willingness to hear the objections of the appellant on those matters. As pointed out by the learned Judge, we have no reason to think that any representation in that behalf by the appellant will not be fairly and reasonably considered by the authorities concerned. the Government have always the power to abandon an acquisition in relation to any part of the land, if the Government are satisfied with the reasons advanced, against the acquisition even at this stage, they have the power to and can abandon the acquisition. There can, therefore, be no substantial grievance on the part of the appellant that an opportunity was not given to him Under Section 5-A for tiling his objections within thirty days of the original notification. Apart from that consideration, it may also be noticed that if the court were to hold that the notification Under Section 4(1) should be re-issued with an opportunity to the appellant to file his objections, it would create further complications in regard to the validity of the title acquired by the various persons who had already obtained house sites under the scheme and who had perhaps built houses thereon. Having regard to the circumstances of the case, we consider that there is no case for exercising the discretionary power of this court under Article 226 of the Constitution to quash the entirety of the notification. The notification Under Section 4(1) of the Act will, therefore, stand. The Government will however near and dispose of all relevant objections which might be put forward by the appellant within any time to be specified by them. The appeal fails and is dismissed. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //