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V. Gopalakrishna Vs. the Secretary, Board of Revenue, Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 125 of 1953
Judge
Reported inAIR1954Mad362; (1953)1MLJ744
ActsLand Acquisition Act, 1894 - Sections 6 and 6(1); Evidence Act, 1872 - Sections 4; Constitution of India - Article 226
AppellantV. Gopalakrishna
RespondentThe Secretary, Board of Revenue, Madras and anr.
Appellant AdvocateN. Subramaniam and ;M. Ramakrishna, Advs.
Respondent AdvocateGovt. Pleader, ;M.S. Ramachandra Rao and ;M. Krishna Rao, Advs.
DispositionPetition dismissed
Cases ReferredManickchand Mahta v. Corporation of Calcutta
Excerpt:
property - acquisition of land - sections 6 and 6 (1) of land acquisition act, 1894, section 4 of evidence act, 1872 and article 226 of constitution of india - application to quash notification of government under section 6 - contention that there was no need for expansion market for which acquisition sought - petitioner has opportunity of putting forward all objections on merits to acquisition of property before government - it was after filing of objections that government decided to acquire land - all requirements of statute complied with government - acquisition not liable to be challenged on ground that it was not in accordance with act - acquisition was contemplated even before petitioner came on scene so allegation of depriving petitioner with mala fide intention not acceptable -..........to quash the notification of the government of madras dated 22-1-1953 under section 6 of the land acquisition act. the land proposed to be acquired is a vacant site of the extent of about 1 acre and 39 cents situated in the village of pithapuram. just to the north of this plot is a market where weekly shandies are held. the market is bounded on the east by a public road and on the north and west by a channel called 'the cherugula kalvai'. if the market is to expand, it can be only on the south. the maharajah of pithapuram to whom the site belonged offered it for sale in the year 1945. on 15-3-1945 the panchayat board of pithapuram passed resolution no. 74 to acquire it from the maharajah by private sale for the purpose of the market. as the negotiations did not make much of a.....
Judgment:
ORDER

Venkatarama Aiyar, J.

1. This is an application under Article 226 of the Constitution for the issue of a writ of certiorari to quash the notification of the Government of Madras dated 22-1-1953 under Section 6 of the Land Acquisition Act.

The land proposed to be acquired is a vacant site of the extent of about 1 acre and 39 cents situated in the village of Pithapuram. Just to the north of this plot is a market where weekly shandies are held. The market is bounded on the east by a public road and on the north and west by a channel called 'The Cherugula kalvai'. If the market is to expand, it can be only on the south. The Maharajah of Pithapuram to whom the site belonged offered it for sale in the year 1945. On 15-3-1945 the Panchayat Board of Pithapuram passed resolution No. 74 to acquire it from the Maharajah by private sale for the purpose of the market. As the negotiations did not make much of a progress, a further resolution No. 53 was passed on 17-6-1948 requesting the Maharajah to grant the site at a reasonable cost to the Panchayat and by a further resolution No. 230 dated 31-1-1947 the Panchayat Board offered a price of Rs. 10,000 for the site.

It was at this stage that on 25-3-1947 the petitioner purchased the site from the Maharajah for a price of Rs. 10,200. The Panchayat Board then passed a resolution on 30-9-1947 requesting the Government to acquire the plot under the provisions of the Land Acquisition Act. The petitioner raised objections to the acquisition before- the Revenue Officers and after protracted correspondence the Panchayat Board passed finally resolution No. 108 on 31-10-1950 agreeing to the acquisition in the terms mentioned by the Revenue Divisional Officer.

Thereafter, a notification under Section 4(1) of the Land Acquisition Act was published on 12-12-1950. The petitioner filed his objections to the acquisition under Section 5 of the Act. He also endeavoured to get the Panchayat Board itself to rescind its resolution dated 31-10-1950 and to withdraw from the acquisition and offered to make a gift of 16 cents to the Panchayat if they would drop the acquisition proceedings. It is stared In the affidavit in support of the petition that resolutions were passed on 20-4-1951 and 26-5-1951 cancelling the previous resolution dated 30-9-1947, for acquisition of the plot. This is, however, denied on behalf of the respondents. They state that a requisition was received from the Revenue Divisional Officer informing the panchayat that the acquisition would be completed during 1951-52 and asking the Panchayat to be ready with the necessary funds and that in reply to this, resolution No. 6 was passed on 20-4-1951 stating that the Panchayat Board had already that information; that on 26-5-1951 when a resolution was moved for reconsidering the matter it was ruled as out of order and that thereafter the payment of Rs. 11750 by the president towards the cost of the acquisition was ratified by the Panchayat Board by its resolution No. 88 dated 31-5-1951.

2. After this the petitioner moved the Board of Revenue for withdrawing from the proceedings alleging various irregularities and stating that the site was worth Rs. 45000 and that there was no need to acquire the same. It is stated in the affidavit of the petitioner that the Inspector of Municipal Councils and Local Boards was asked to report on the necessity for the acquisition of this plot, that he held an enquiry and sent a reportthat there was no need for the acquisition andthat the Panchayat Board was not acting bona fide in attempting to acquire the land. The report however is not among the records. Eventually, the Government considered the entire matter and decided to acquire the site and issue a notification under Section 8(1) of the Act on 23-1-1953. It is the validity of this notification that is now in question.

3. Two points have been urged by the petitioner in support of this petition: (1) There was no need to expand the market; the real object of the acquisition was to deprive the petitioner of his property and the proceedings are therefore 'mala fide' and liable to be set aside; and (2) there was no compliance with the provisions of the Act and therefore the acquisition was illegal.

4. (1) The contention on behalf of the petitioner is that the Panchayat is a small one; that the existing market is more than ample to satisfy the requirements of the public; that he was prepared to make a gift of 16 cents and that would in any event have sufficed and that the real object of the acquisition was to deprive the petitioner of his property. The counter-affidavit of the respondents states that the market is insufficient for holding the weekly shandis, that it is congested and that has resulted in accidents, that as it could expand only southwards it had become necessary to acquire the site belonging to the petitioner and that the small strip of 16 cents offered would be quite insufficient for the needs. It is also denied that the acquisition was started with the object of depriving the petitioner of his properties.

5. It cannot be maintained that the acquisition of property for the purpose of market is not for a public purpose. The only question then is whether on the facts of the case there was need for such acquisition. Section 6 of the Land Acquisition Act provides that a declaration under that section shall be conclusive evidence that the land is needed for a public purpose. It has accordingly been held by a Pull Bench of this Court in --'Suryanarayana v. Province of Madras', AIR 1945 Mad 394 (A), that a declaration made under that section could not be challenged in a court of law. Leach C. J. observed:

'Sub-section 3 makes it quite clear that the declaration of the Provincial Government cannot be questioned in a court of law. Of course, if the Provincial Government in fraud of its powers directed land to be acquired, a suit would no doubt lie; but, where there is no charge against the Provincial Government that it has acted in fraud of its powers, its action in directing the acquisition cannot be challenged in a court of law.'

In this case there is no allegation that the Government has acted in fraud of its powers. What all is alleged is that the resolutions of the Panchayat Board were actuated by malice. It would therefore follow that it is not open to the petitioner to challenge the validity of the notification on the ground that there was really no need for a market or that the Panchayat Board was actuated by malice against him.

Mr. N. Subramaniam, the learned advocate for the petitioner argued that the present case was governed by the decision of the Privy Council in -- 'Luchmeswar Singh v. Chairman, Dharbanga Municipality', 18 Cat 99 (PC) (B). In that case during the minority of the Maharajah of Dar-bhanga, properties belonging to him were taken over by the Municipality of Darbhanga in proceedings taken under the Land Acquisition Act of 1870 the court of wards waiving compensation due under the Act. It was found that in substance the transaction was one of gift by the Court of Wards to the Municipality and that proceedings under the Land Acquisition Act were taken colourably with the object of enabling the court of wards to make a gift which was not within its competence. It was held by the Privy Council that this was a fraud on the powers conferred under the Land Acquisition Act. In the present case, the Government is competent to acquire lands for purposes of market and the acquisition is real and not colourable.

Reliance was also placed on certain observations of the Privy Council occurring in -- 'Trustees for the Improvement of Calcutta v. Chandrakant', AIR 1920 PC 51 (C). There, an acquisition of land for the purpose of Calcutta Land Improvement Trust was challenged on the ground that the true object of the acquisition was not to improve the road conditions in Calcutta but to exact an exemption fee from the owner. Dealing with this contention, the Privy Council observed as follows:

'The object of this section is to give an opportunity to owners of land to request the abandonment of its compulsory acquisition, and it only comes into operation where land has 'been properly included in a scheme, as required for purposes of the Act. To have included land within the area of the scheme not because it was wanted for purposes of the Act, but in order to exact an exemption fee from the owner would, in the opinion of their Lordships, have been a misuse of the powers conferred upon the Board, and if in fact the Board had included the land of the respondent in the scheme merely for the purpose of exacting exemption fees, the Board would have acted ultra vires and the respondent would have been entitled to succeed in his actions.'

These observations clearly have no application to the present case as the present acquisition has been made for improving the market conditions. The utmost that can be said by the petitioner is that in deciding upon acquiring his property for the purpose of the market the members of the Panchayat had also the malicious satisfaction that it was the petitioner's property that was being acquired. That, however, is not a ground for holding that the acquisition is illegal.

6. Moreover the petitioner had an opportunity of putting forward all his objections on the merits to the acquisition of the property before the Government. He did file his objections under Section 5(a) and it is after hearing those objections that the Government decided to acquire the land and issued the notification under Section 6. In -- 'Padayacht v. State Of Madras' : AIR1952Mad756 , a Bench of this Court of which I was a member held that a notification under Section 6 was not liable to be attacked on the ground that the resolution on which the acquisition was made was mala fide and engineered by political opponents, if the owner had an opportunity of putting forward his objection before the Government. Following this decision, it must be held that the notification of the Government dated 22-1-1953 under Section 6 of the Act is not liable to be quashed even if the resolution of the Panchayat was inspired by motives of personal illwill against the petitioner.

7. I must add that even on the facts I am not satisfied that the Panchayat Board was actuated by any malice in passing a resolution for the acquisition of the site in question for the purpose of the market. The Board had been attempting to acquire the property even from 1945 before the petitioner came on the scene and it cannot therefore be said that they were actuated by an intention to deprive the petitioner of his property.

8. It is next contended that the notification under Section 8(1) is bad because there had been no proper resolution by the Panchayat Board for acquisition of the property. It is urged that the original resolution dated 30-9-1947 had been rescinded by resolutions dated 20-4-1951 and 26-5-1951 and that the Board which passed the final resolution for acquisition dated 10-11-1952 was not really competent to do so because two of the members belonging to the petitioner's faction had been compelled by the Government to resign, a third member of that faction had died and a fourth had vacated his seat by continued absence.

There is no substance in this objection. Apart from the fact that the parties are not agreed as to what happened at the meetings on 20-4-1951 & 26-5-1951 the petitioner cannot succeed unless he is in a position to challenge the validity of the resolution dated 10-11-1952. Counsel for the petitioner states that two of the members had been obliged by the Government, to resign & that the resolution dated 10-11-1952 passed in their absence is invalid. The facts are that these two persons became Government servants when the Government took over the estate, and they ceased to hold office as members by reason of the provisions contained in the Village Panchayat Act and what the Government did was merely to send an intimation, to them to that effect. As those two members ceased to be members as a result of their continuing in service as Government employees there is no question of compulsory resignation. This objection must accordingly fall on the merits.

9. I have so far assumed that the absence of avalid resolution by the Panchayat Board would bea good ground for holding that a notificationunder Section 6(1) would be bad. But, that howeverdoes not appear to me to be the correct position.The petitioner relied on the decision in -- 'Manickchand Mahta v. Corporation of Calcutta', AIR 1921 Cal 159 (E), where Greaves J. held

'that though the notification under Section 6 of theLand Acquisition Act is conclusive so far as S.4 of the Evidence Act is concerned yet the courtis entitled to enquire into the validity of thesteps leading up to the recommendation, andwas competent to inquire into the legality orotherwise of the acts of the Corporation andthe trusts'

In -- '18 Cal 99 (PC) (B)', it was held by the Privy Council that where the validity of an acquisition was challenged, it would be open to the court to consider whether there had been due compliance with the provisions of the Act. Both these authorities are relied on on behalf of the petitioner as supporting the position that if there was no valid resolution by the Panchayat Board, the acquisition by the Government would be open to attack notwithstanding the declaration under Section 6(1).

There cannot be any doubt that if the Government in exercising the powers under the Land Acquisition Act does not comply with the requirements of the statute, its action must be held to be 'ultra vires'. But, in this case the Government has complied with all the requirements of the statute and the acquisition is not liable to be challenged on the ground that it is not in accordance with the Act, The further contention that the notification under Section 6(1) is liable to be impugned on the ground that it was in furtherance of a resolution of the Panchayat Board which was not duly passed is open to question. It is difficult to see why ail act of the Government which is valid according to the provisions of the Land Acquisition Act should be open to attack because of the infirmity attaching to a resolution of the Panchayat Board. It is for the Government to consider that resolution and decide whether they should act upon it. If they had decided to act upon it and issued a notification under Section 6(1), it is not within the province of the Court to hold that the Government ought not to have acted upon the resolution and taken action under the Act. With all respect I am unable to agree with the rather wide observations of Greaves J. in --'AIR 1921 Cal 159 (E)'. But in the view which I have expressed that there has been a valid resolution, this question does not arise.

10. I should add that a suit is the more appropriate remedy for considering questions of the kind raised by the petitioner and that on that ground also I should decline to interfere with the notification in proceedings by way of writ.

11. This petition is accordingly dismissed with costs, one set Advocate's fee Rs. 250.


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