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A. Natesa Asari Vs. State of Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 6457 of 1950
Judge
Reported inAIR1954Mad481; (1953)2MLJ684
ActsLand Acquisition Act, 1894 - Sections 5A, 6 to 37 and 38 to 44
AppellantA. Natesa Asari
RespondentState of Madras and anr.
Appellant AdvocateK. Rajah Aiyar, Adv. for ;V. Ramaswami Aiyar and T.A. Ramaswami Reddi, Advs.
Respondent AdvocateAdv. General, for Govt. Pleader
DispositionApplication dismissed
Cases ReferredEzra v. Secy. of State
Excerpt:
property - acquisition proceedings - sections 5a, 6 to 37 and 38 to 44 of land acquisition act, 1894 - application raising objection that applicant had no opportunity to prefer objections under section 5a - under section 17 (1) collector may even before making an award under section 16 take possession of property within 15 days of publication of notice mentioned in section 9 - land acquired for public purpose - possession taken under section 17 (4) and section 5a will have no application - section 17 (4) requires that government must be satisfied about urgency contemplated by section 17 (1) - on satisfaction government entitled to pass order under section 17 (4) suspending application of section 5a - application dismissed. - - rajah aiyar relies on the fact that section 17(4) refers..........it is now argued before us that the acquisitions are in contravention of the provisions of the land acquisition act (i of 1894) and that therefore they are invalid. two objections have been put forward on this score. one is that the petitioners had no opportunity to prefer objections under section 5-a of the act. to understand the contention of the learned counsel for the petitioners, it is necessary to set out in brief the scheme of the act. under section 4 a preliminary notification is made for the acquisition of the property for any public purpose. under section 5-a objections are heard and then the final order is passed under section 6.thereafter notice to all the persons is given under section 9 and after enquiry is held, an awards passed under section 16. on the making of an.....
Judgment:

Venkatarama Aiyar, J.

1. We have already held that the acquisitions are for a public purpose and that therefore they are not open to objection under Article 31(2) of the Constitution. It is now argued Before us that the acquisitions are in contravention of the provisions of the Land Acquisition Act (I of 1894) and that therefore they are invalid. Two objections have been put forward on this score. One is that the petitioners had no opportunity to prefer objections under Section 5-A of the Act. To understand the contention of the learned counsel for the petitioners, it is necessary to set out in brief the scheme of the Act. Under Section 4 a preliminary notification is made for the acquisition of the property for any public purpose. Under Section 5-A objections are heard and then the final order is passed under Section 6.

Thereafter notice to all the persons is given under Section 9 and after enquiry is held, an awards passed under Section 16. On the making of an award under Section 16, the property vests absolutely in the Government. There are two exceptions to this procedure provided in Section 17. We are concerned only with one of them Section 17(1). That provides that in cases of urgency, the Collector may even before the making of an award, take possession of the property within 15 days of the publication of the notice mentioned in Section 9. Tne contention of the learned counsel for the petitioners is that the power under Section 17(1) could be invoked only after the stage has been reached when notices are issued under Section 9 which must itself be only after hearing objections under Section 5-A. So far, we agree.

2. It is necessary now to refer to Section 17(4) which is the relevant provision. It runs as follows:

'In the case of any land on which, in the opinion of the Provincial Government, the provisions of Sub-section (1) or Sub-section (2) are applicable the Provincial Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4 Sub-section (1);'

The notice that was issued in this case is in these terms:

'Whereas it appears to His Excellency the Governor of Madras that the land specified below is needed for a public purpose, to wit, for construction of houses, notice to that effect is hereby given to all whom it may concern in accordance with the provisions of Section 4(1) of the Land Acquisition Act I of 1894.' and then the notice proceeds to state: 'Under Section 17(4) His Excellency the Governor of Madras directs that in view of the urgency of the case, the provisions of Section 5-A of the Act shall not apply to the acquisition of the waste or arable lands specified below.'

Therefore as action was taken under Section 17(4), Section 5-A will have no application.

3. But Mr. Rajah Aiyar relies on the fact that Section 17(4) refers to the provisions of Sub-section (1) & argues that by implication it must be taken that the powers under Section 17(4) could be exercised only after objections are heard under Section 5-A and notices are issued under Section 9. This argument is against the express language of Sub-section (4) which clearly enacts that the provisions of Section 5-A shall not apply in case of orders under that sub-section. To adopt the construction contended for by Mr. Rajah Aiyar will be to render Sub-section (4) wholly nugatory. What all is required under Section 17(4) is that the Government must be satisfied that there is such urgency as is contemplated by Section 17(1). If they are so satisfied, they are entitled to pass an order under Section 17(4) suspending the application of Section 5-A and that is what has been done in this case. Mr. Rajah Aiyar also suggested that there was no such urgency as would justify involving the powers under Section 17(1) and that there was no inquiry about any such urgency. We are of opinion that whether an urgency exists or not is a matter solely for the determination of the Government and it is not a matter for judicial review. This objection is accordingly overruled.

4. The second objection of Mr. Rajah Aiyar is this. He contends that under the scheme of the Land Acquisition Act there are two distinct powers conferred on the Government for acquiring property, one for a public purpose and the other for a company and that Sections 6 to 37 are applicableto acquisitions for a public purpose while Sections 38 to 44 forming part of part VII apply to acquisitions for companies. He contends that the two powers are distinct said alternative. In this case it is not disputed that the Government is acquiring the properties for the benefit of a house building co-operative society. Co-operative societies are companies within the definition of that term in the Land Acquisition Act and it is accordingly contended that the Government is bound to proceed only under Part VII relating to Companies and not under Sections 6 to 37. Mr. Rajah Aiyar argues that the Government ought to have taken action under Section 40 and made enquiries as to the necessity for acquisition and otherwise satisfied all the requirements of the sections in part VII and that they have not done. What they have done is only to act under Sections 6 to 37 as in the case of acquisitions for public purposes. This he says is an illegal exercise of the power and therefore the acquisition is invalid.

5. We are unable to agree that there are two distinct alternative and mutually exclusive powers with reference to acquisition of property. Section 4 under which proceedings are commenced only recites that the acquisition should be made for a public purpose. Then we come to the sections relating to acquisitions of land for companies. Section 40(1)(a) provides that the acquisition might be made for erection of dwelling houses for workmen employed by the company or for the provision of amenities directly connected therewith. There may be a doubt as to whether this can be regarded as a public purpose. But the legislature was anxious to confer power on the Government to acquire properties in the case of companies even in cases coming under Section 49(1)(a). Therefore, in our opinion, the true scope of Section 40 is not to abridge the rights of the Government to acquire property for public purposes whether it is for a company or not but to enlarge that power so as to enable them to acquire property even in cases coming under Section 40(1)(a) irrespective of the question whether the purposes are public or not.

6. Reliance was placed by the learned advocate for the petitioner on the language of Section 6 where it is stated that the land may be acquired for a public purpose or for a company. It is argued that the use of this disjunctive is clear to show that the two purposes are alternative & that therefore they are mutually exclusive. A similar argument was addressed in the case in -- 'Ezra v. Secy. of State', 30 Cal 36 (A). Dealing with this contention, the learned Judges observed as follows:

'If we have fully apprehended the argument on the point, the contention seems to be this: Section 6 provides that 'whenever it appears to the Local Government that any particular land is needed for a public purpose or for a company, a declaration should be made to that effect'. The words 'public purpose' and 'company' are used disjunctively and if the land is required for a company, it must be so stated without any reference to a public purpose.'

This argument the learned Judges reject as fallacious. A Bench of this Court consisting of Satyanarayana Rao and Raghava Rao JJ. also observed as follows:

'The use of the words 'public purpose' and a 'company' in the disjunctive in the section does not exclude and is not inconsistent with the view that the purpose, even in the case of acquisitions for a company, should be a public purpose.'

We think that where there is a public purpose, the powers of the Government to acquire land are not excluded because the acquisition is for the benefit of a company. In fact, we are unable to see any antithesis in two such dissimilar things as 'public purpose' and 'company'. In our judgment, the proper construction to be put upon this section is whenever there is a public purpose an acquisition can be made by the Government whether it is for a company or not. But in case of a company where the acquisition is sought to be made for one of the purposes mentioned in Section 40 that could validly be done without reference to the question whether it is a public purpose or not. In that view, we do not find that there is any prohibition in the Act against the Government acquiring lands for a company when there is a public purpose and following the procedure prescribed in Sections. 6 to 37. In this view this objection also must be overruled.

7. 'C. M. P. No. 6457 of 1950:' It is further contended that on the facts of this case the acquisition was not a proper one. It is urged that what is acquired is land around a rice mill, that it is required for the purpose of extension of the rice mill business and for finding habitations for the labourers. All these objections have been considered by the appropriate authorities and their decision on these matters is final. We are not satisfied that the power has been exercised fraudulently or in any mala fide manner. In our opinion therefore there are no grounds for interfering with the acquisition proceedings and this application is dismissed with costs.

8. In view of the fact that this case involves an interpretation of the Constitution and in particular Article 31(2) thereof, a certificate will issue.


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