1. These three appeals, W.A. Nos. 349, 350 and 351 of 1983, are against the common judgment rendered in with Petitions Nos. 1837, 1836 and 1835 of 1982 respectively by Mohan, J. dismissing the writ petitions of the appellants praying for issuance of a writ of certiorai quashing the proceedings in G.O.Ms. No. 68, Revenue, dated 11.1.1982, and the notification dated 15.12.1980 in G.O.Ms. No. 2753, Revenue.
2. The father of Umraomal and Jawantharaj, appellants in W.A. Nos. 349 and 350 of 1983 respectively, purchased certain buildings in R.S. No. 80 and R.S. No. 82/2 of an extent of 5 grounds and 1030 sq. feet of Tondiarpet village in the year 1928 and 1931. The Government granted lease of the land on 12.7.1941 on a yearly rent of Rs. 500/-. They were living with the members of their families in the buildings constructed by them and they have also built certain shops in the ground floor and let them out to certain tenants. But the tenants committed default in the payment of rent which resulted in the appellants taking proceedings in eviction. Orders were passed evicting the tenants, but still they continued to squat on the property and they formed an association known as 'Royapuram Cemetery Road Merchants Sangam' consisting exclusively of the tenants under the appellants. They made certain untrue representations to Government and were able to persuade the Government of Tamil Nadu to terminate the lease in favour of the appellants. The Government directed the appellants to remove the superstructures. The appellants then moved this Court and filed Writ Petitions Nos. 4154, 4180 and 4181 of 1978 and this Court observed that the proper remedy for them is to approach the Government and also directed the Government to explore the possibility of acceding to the request of the appellants. In pursuance of this order, the appellants moved the Government bringing it to the notice of the Government that they have spent nearly Rs. 4,50,000/- their life savings. The Government examined the matter and passed G.O.Ms. No. 2730, Revenue, dated 11.12.1980 giving up the proposal for demolition of the superstructure, but agreed to pay compensation for the value of the superstructure. Under these circumstances, a notification under Section 4(1) of the Land Acquisition Act in G.O.Ms. No. 2753, Revenue, dated 15.12.1980 came to be passed. The notification stated that the public purpose for which the acquisition is made is to provide 'shopping facilities to small traders and self employed persons.' An objection was also filed by the petitioner in W.P. No. 1835 of 1982 in response to a notice under Section 5-A of the Act, but it was overruled and a declaration under Section 6 of the Land Acquisition Act was made in G.O.Ms. No. 68, Revenue, dated 11.1.1982 and it was also published in the Tamil Nadu Gazette Extraordinary, Part II Section 2, dated 12.1.1982. The declaration is in the usual statutory form stating that the Government has been satisfied that the superstructures on the land have to be acquired for public purposes. It is under these circumstances that the writ petitions were filed. The acquisition was attacked on various grounds, the important of which are: (1) that the proceedings under the Land Acquisition Act cannot be resorted to acquisition of superstructures alone; (2) that the Government is actuated by malice; and (3) that the Government should have resorted to proceedings under the Tamil Nadu Requisitioning and Acquisition of Immovable Property Act, 1956. The learned single Judge held that the Government can acquire the superstructure as the land belongs to Government, that there are no mala fides in the case, that the acquisition is for a public purpose, that it is open to Government to take proceedings having recourse to Central Act or to the Tamil Nadu Requisitioning and Acquisition of Immovable Property Act, 1956 and in the end the learned Judge dismissed the petitions. These appeals are preferred against that order.
3. Mr. Dolia, learned Counsel appearing for the appellants, attacked the order on almost the same points as were raised before the learned single Judge, but laid particular stress on the fact that the purpose mentioned in the notification under Section 4(1) of the Land Acquisition Act, is not a public purpose. The other contentions are that the Government cannot resort to Land Acquisition Act, but has to resort to the Tamil Nadu Requisitioning and Acquisition of Immovable Property Act, 1956, that the acquisition of the building alone under the provisions of the Land Acquisition Act will not be valid and that the proceedings of the Government were motivated by mala fides.,
4. The notification in G.O.Ms. No. 2753 Revenue, dated 15.12.1980 shows that the Government of Tamil Nadu intended to acquire 'the superstructures on the land in R.S. Nos. 80 and 882/2 in Tondiarpet village, Tondiarpet Taluk, Madras District, for the purpose of assigning the Lands and the Superstructures thereon to provide for 'shopping facilities to small traders and self-employed persons. The impugned declaration under Section b of the Land Acquisition Act, 1894 reads that the superstructures on the lands specified in the schedule are needed for a public purpose, to wit; for the purpose of assigning the lands and the superstructures thereof to provide for shopping facilities to small traders and self-employed persons. The contention of the learned Counsel, Mr. Dolia, for the appellants is that the Government should have resorted to the Tamil Nadu Requisitioning and Acquisition of Immovable Property Act, 1956 as that is the special enactment for acquisition of buildings and should not have resorted to the Land Acquisition Act, 1894, which is a Central enactment which provides for acquisition of land for public purposes and for companies, and in fact in one of the grounds in the memorandum of appeal, it has been pointed out that the notification under the provisions of the Land Acquisition Act is void and without jurisdiction. This contention, in our view, is not well-founded for the simple reason that under Section 3 of the. Land Acquisition Act (Act I of 1994), the expression 'Land' includes things attached to the earth or things permanently fastened to anything attached to the earth. Secondly it must be noted that the lands in question belong to Government and the appellants are lessees of the land. It is therefore clear that the Government did not propose to acquire what was already their own, but only the superstructures built upon their lands. In Deputy Collector, Calicut Division v. Aiyavu (1911) 9 I.C.341 wallis, J. as he then was, observed:
It is, in ray opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired under the Act, but only for the acquisition of such interests in the land as do not already belong to the Government.
It is therefore manifest that when the Government is the owner of the land, it need not acquire the land, because there can be no question of Government acquiring what is its own. It has therefore to acquire only the superstructures which stood on the land belonging to it and such an acquisition can be made under the Land Acquisition Act (Act I of 1894). We are therefore of the view that the Government was not wrong in resorting to Act of 1894. That disposes of one of the challenges made to the impugned notification.
5. The appellants would state that the Government have been actuated by malice at the instance of the defaulting tenants and the tenants were able to bring pressure on the Government through political intervention and persuade the Government to take proceedings for acquisition (Paragraph 6(f) of the affidavits in the writ petitions) and that the Government is keen on supporting the tenants for political reasons. It would be very difficult for the appellants to prove malice. But the learned Counsel, Mr. Dolia, for the appellants pointed out that the Government is only guilty of malice in law. Viscount Haldane described malice in Sherrer v. Shields (1914) A.C.808 as follows:
A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently.
It is likely that the Government have terminated the lease of the appellants and have sought to acquire the superstructure on the representations made by the Royapuram Cemetery Road Merchants Sangam which consists of the tenants of the appellants' premises. But, if the Government uses the power of acquisition under the Land Acquisition Act for fulfilment of an object which, in its view, is for public purpose, then we cannot say that the act of the Government is actuated by malice in law. But, if the action is guided by extraneous consideration and the true object is for different reasons from the one for which the acquisition is allegedly made, then the appellants may have a case that the State is actuated by motives and intentions which are mala fide. In this case, in the counter-affidavit the State has denied the allegation that they were politically actuated. There appears to be no prima facie evidence that the Government was influenced by considerations which are bad. We are, therefore, of the view that the appellants have not proved mala fides on the part of the Government in starting proceedings for acquisition of the superstructures.
6. The only question that remains to be considered is whether the acquisition can be upheld as one for public purpose. It has already been pointed out that under the impugned notification, the public purpose is said to be 'to provide for shopping facilities to small traders and self-employed persons.' According to the appellants, the tenants are not small traders, nor are they self-employed persons, but most of them are income-tax assessees, some of them are doctors, jewellers, pawnbrokers and pharmacists. The further contention is that some of them have ceased to be tenants even before the notification, that the appellants have taken proceedings both under the Rent Control Act and in the civil court and have also obtained orders of eviction and also decrees for possession, that there are only 32 tenants and that the acquisition for providing shopping facilities to the defaulting tenants of the appellants' premises will not be 'public purpose'. The fact that the tenants of the appellants' premises formed the Royapuram Cemetery Road Merchants' Sangam is not disputed. As to what constitutes public purpose, has been the subject-matter of many rulings, the earliest of which is Hamabai Framjee Petit v. Secretary of State (1915) L.R.42 IndAp44 : 28 M.L.J. 179 : 2 L.W.191 : A.I.R.1914 P.C.20 where their Lordships of the Judicial Committee, following Batchelor, J. took the view that the phrase 'public purpose' must include a purpose in which the general interest of the community as opposed to particular interest of individuals, is directly vitally concerned. The expression 'public purpose' came to be considered in Somawanti v. State of Punjab : 2SCR774 . Referring to the definition in Section 3(f) of the Land Acquisition Act, their Lordships pointed out that it is an inclusive definition and not a compendious one and therefore does not assist very much in ascertaining the ambit of the expression 'public purpose' and that broadly speaking the expression 'public purpose' would, however, include a purpose in which the general interest of the community as opposed to particular interest of individuals is directly and vitally concerned. In this case, the acquisition, is sought to be made to accommodate the tenants of the premises belonging to the appellants. The learned Advocate-general sought to sustain the order of the learned single Judge on the ground that the tenants of the premises of the appellants also form a section of the society and therefore the purpose in question will be a public purpose and the Government alone is the best authority to determine whether the purpose in question is 'public purpose' or not. In our view, the proper approach would be to consider the scheme as a whole and then examine whether the entire scheme is for a public purpose or not. As we earlier pointed out, it is only to benefit the tenants who have defaulted to pay rents against some of whom the appellants have procured orders of eviction and decrees for possession. This is not a case of landless poor being provided with shelter, but accommodating the very tenants of the appellants who have defaulted. As pointed out already, some of the tenants are pawnbrokers, doctors, chemists and others. All the disgruntled tenants joined together under the banner of Royapuram Cemetery Road Merchants' Sangam and moved the Government for cancelling the lease granted to the appellants and acquire the superstructures, by which acquisition the persons to be benefited will be the tenants of the appellants. In Arnold Rodricks v. State of Maharashtra : 3SCR885 the Supreme Court observed thus:
The main idea in issuing the impugned notifications was not to think of the private comfort or advantage of the members of the public but the general public good. At any rate where a very large section of the community was concerned its welfare is a matter of public concern, and when the notifications serve to enhance the welfare of this section of the community this is public purpose and the notifications are valid and cannot be impugned on the ground that they were not issued for any public purpose.
In this case, it cannot be said that the welfare of the large section of the community is concerned. We have not been shown any precedent or Incident where the Government have acquired buildings for accommodating the tenants of these buildings. The acquisition is meant for the particular interest of the individual tenants of the appellants and therefore, in our view, does not involve the general interest of the community as a whole. In our view, the acquisition is therefore not for a public purpose.
7. We therefore, allow the appeals, set aside the order of the learned single Judge passed in Writ Petitions Nos. 1835 to 1837 of 1982 and quash the notification made in G.O.Ms. No. 68, Revenue, dated 11.1.1982 and published in the Tamil Nadu Government Gazette, Extraordinary, Part II, Section 2, dated 12.1.1982 and the notification made in G.O.Ms. No. 2753, Revenue, dated 15.12.1980, published in the Tamil Nadu Government Gazette, (Supplement) dated 31.12.1980. There will, however, be no order as to costs.