1. This is an application under Article 226 of the Constitution for the issue of a writ of Certiorari to set aside the proceedings taken by the Government under the Land Acquisition Act to acquire the property of the petitioner.
2. About four grounds of land belonging to the petitioner in S.No. 344/2, since demarcated, 344/3,' were leased by him to five persons, hereinafter referred to as tenants, who lived in the superstructures constructed by them on that land. The petitioner terminated the leases and sought their eviction which was ordered by the court of small causes on 27-2-1950. The tenants filed suits to avoid the orders of eviction, but the suits were dismissed by the City Civil Court on 31-1-1951. The appeals preferred by the tenants to the High Court were dismissed on 27-8-1953.
3. Apparently the tenants approached the Director of Harijan Welfare to acquire the site for their benefit and the Director of Harijan Welfare addressed the Government on 6-10-1953 to acquire the land for the ostensible public purpose of 'providing the Harijans ot Ekangipuram Colony' with house sites. The tenants had apparently agreed to meet the entire cost of the acquisition. The notification under Section 4(1) of the Land Acquisition Act was ordered, by Government on 15-1-1954 and was published in the official gazette on 20-1-1954. The declaration under Section 6(1) of the Act was published by the Government on 27-1-1954.
Pending completion of the proceedings for acquisition under the provisions of the Land Acquisition Act, the Government took possession of the land on 5-2-1954, after issuing a notice to the petitioiner on 2-2-1954 to deliver possession of the land.
4. The petitioner challenged the validity of the proceedings taken by the Government under the provisions of the Land Acquisition Act on the following grounds:
'1. The proposed acquisition was not for public purposes;
2. Legally it was a fraud on the statutory powers vested in the Government by the Act to acquire the petitioner's property for the benefit of the tenants whose rights had been negatived by the civil courts;
3. The requirements of the proviso to Section 6(1) of the Land Acquisition Act were not satisfied.
The petitioner also urged that there was no necessity in this case for the Government to resort to the provisions of Section 17 of the Act or to dispense with the notice and the enquiry prescribed by Section 5-A of the Act.
5. I propose to confine myself only to the third of the objections enumerated above. The proviso to Section 6(1) of the Land Acquisition Act runs;
'Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.'
In -- 'Suryanarayana v. Province of Madras', AIR 1945 Mad 394 (A), a Full Bench of this court observed at p. 395:
'In interpreting the proviso we can only have regard to the words used and, in our judgment, it is sufficient compliance with the proviso if any part of the compensation is paid out of public funds. One anna is a part of the compensation. It is true it is a small part, but it is nevertheless a part. We consider that the learned Judges who decided -- 'Senna Naicken v. Secy, of State : AIR1927Mad245 , took the correct view.'
The contention of the petitioner, that in this case, there was no evidence that the Government proposed to contribute even that one anna from the public revenues towards the cost of the acquisition of the petitioner's site, appears to be well founded. That the Government did not traverse in the counter statement it filed the specific allegation of the petitioner, that the entire cost of the acquisition was to be met by the tenants, may not conclude the issue.
The letters written by the Director of Harijan Welfare to the Government and to the tenants, copies of which were plated before me, indicate that the tenants were to meet the entire cost, and these letters do not indicate that any portion of the cost of acquisition, even one anna, was to be paid by the Government out of public revenues. There was apparently nothing on record to which the learned Government Pleader could refer to show that the Government intended at any time before it directed the publication of the declaration under Section 6(1) of the Act, to pay any part of the compensation out of public revenues.
6. I am unable to accept the contention of the learned Government Pleader that the statutory requirements of the proviso to Section 6(1) of the Act would be satisfied if the Government eventually paid the contribution, i.e., even a contribution of one anna, from the public revenues. Payment of compensation could ot course be only after the publication of a declaration under Section 6(1) of the Act.
But as I read the proviso to Section 6(1), there must be some unmistakable manifestation of the intention of the Government to pay at least a part of the compensation from out of the public revenues, and that manifestation must be antecedent to the publication of the declaration under Section 6(1) of the Act. In this case there is nothing to show that Government applied its mind at all to the fulfilment of this statutory obligation imposed upon it by the proviso to Section 6(1) of the Act.
In the absence of any evidence to prove that the Government intended at any time before it published the declaration under Section 6(1) of the Act to pay any portion of the cost of the proposed acquisition, I have to hold that it had no jurisdiction at all to issue the declaration under Section 6(1) of the Act.
The terms of the proviso that no such declaration shall be made until the conditions are satisfied are mandatory and the Government could not contravene such a mandatory direction.
7. On this short ground the declaration issued by the Government of Madras under Section 6(1) of the Act and published in the Gazette will have to be set aside as one made without jurisdiction. In that view it is not necessary to go into the other contentions raised by the petitioner. The rule nisi will be made absolute to the limited extent indicated above. The petition is allowed. There will be no order as to costs.