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1960 DIGILAW 361 (KER)

Assankunhi v. State of Madras

1960-08-30

M.S.MENON, T.K.JOSEPH

body1960
JUDGMENT : M.S. Menon, J. The plaintiffs in O.S. No. 44 of 1952 of the court of the Subordinate Judge of Ottapalam are the appellants before us. The question for determination is whether the acquisition of the lands described in the schedule to the plaint by the Government of Madras is liable to be set aside as contended by them. 2. There is no dispute as regards the compensation awarded. The attack is against the acquisition itself. The prayer in the plaint is worded as follows; “That it be declared that the notifications dated 8th May, 1951 and 14-5-51 issued by the 1st defendant (State of Madras) declaring that the properties described as items 1 to 3 of the schedule herein is needed for a public purpose under section 6 of the Land Acquisition Act are void, ultra vires and a fraud on their statutory powers and not binding on the plaintiffs.” 3. The notification of 8-5-1951, omitting the description of the lands, reads as follows: “Under section 6 of the Land Acquisition Act, His Excellency the Governor of Madras hereby declares that the lands specified below and measuring 1.36 acres, be the same a little more or less, are needed for a public purpose, to wit, for the extension of Perinhanam High School building; and, under sections 3 and 7 of the same Act, the Special Tahsildar for Land Acquisition, Palghat, is appointed to perform the functions of a Collector under the Act and directed to take order for the acquisition of the said lands. A plan of the lands is kept in the office of the Special Tahsildar for Land Acquisition, Palghat, and may be inspected at any time during office hours.” (Fort St. George Gazette dated 15-5-1951, Part I-B, Page 448) 4. The notification of 14-5-1951 is not on record. It is not disputed, however, that the procedure for the acquisition of lands for public purposes has been complied with. There is also no doubt that the Government of Madras paid one anna towards the compensation awarded for the property acquired. The evidence on record is certainly not sufficient to come to a conclusion that there was any fraud or lack of bona fides on the part of the Government of Madras or its officials. There is also no doubt that the Government of Madras paid one anna towards the compensation awarded for the property acquired. The evidence on record is certainly not sufficient to come to a conclusion that there was any fraud or lack of bona fides on the part of the Government of Madras or its officials. The maximum that can be said is that the manager of the school was more energetic and persuasive in the matter of the acquisition than the appellants before us. There is a full discussion of the entire evidence adduced in the judgment of the court below and we see no reason to cover the ground afresh. 5. The main contention urged before us relates to the notification under section 6. Sub-section (1) of that section reads as follows: “Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5-A, sub-section (2) that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders: 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.” 6. The school for which the acquisition was made is owned by a society registered under the Societies Registration Act, 1860. Such a society will certainly come within the definition of the expression “Company” given in section 3(c) of the Land Acquisition Act, 1894. Part VII of the Act deals with the acquisition of land for companies. The provisions of that part were not invoked for the acquisition in controversy. 7. It is not contended 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 as has been done in this case—instead of the provisions of Part VII of the Act. That it can be so done is clear from A.I.R. 1954 Madras 481. 8. That it can be so done is clear from A.I.R. 1954 Madras 481. 8. It is common ground that the compensation in this case is not payable wholly or partly out of “some fund controlled or managed by a local authority”, and that the portion of the proviso to sub-section (1) of section 6 which falls to be considered reads as follows: Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid wholly or partly out of public revenues. 9. The contention before us is that the expression “wholly or partly out of public revenues” denotes a substantial payment from public revenues, and that a payment of one anna is a fraud on the section which should not be allowed to succeed. It is true that there is some support for this contention in A.I.R. 1926 Madras 1099. The court said: “The Subordinate Judge who tried the suit, held upon the first issue that the Act did not require that a substantial part of the compensation should come out of public revenues and that, no matter how small the contribution might be, the requirements of S. 6 would be satisfied. We are unable to accept this as a correct view of the law. We consider that the Legislature, when they provided that a part of the compensation should be paid from the public revenues, did not mean that this condition would be satisfied by payment of a particle.” 10. A.I.R. 1926 Madras 1099, however, has been specifically over-ruled by a Full Bench of the Madras High Court in A.I.R. 1945 Madras 394. The Full Bench said: “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.” 11. We are in respectful agreement with this view, and hold that there has been no violation of the proviso to sub-section (1) of section 6 of the Act as contended by the appellants. 12. One anna is a part of the compensation. It is true it is a small part, but it is nevertheless a part.” 11. We are in respectful agreement with this view, and hold that there has been no violation of the proviso to sub-section (1) of section 6 of the Act as contended by the appellants. 12. Sub-section (3) of section 6 of the Land Acquisition Act, 1894, states that “the said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing”. In the Full Bench case above-mentioned the Madras High Court had also considered the question whether in view of sub-section (3), a declaration under section 6(1) is final, or whether it is open to a court to interfere, and decide whether the land was really required for a public purpose or not. It said: “Sub-section (3) of S. 6 states that the declaration shall be conclusive evidence that the land is needed for a public purpose or for a company as the case may be; and, after making the declaration, the Provincial Government may acquire the land in the manner provided by the Act. 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.” 13. We have already held that there is no evidence to establish that the land acquisition proceedings were vitiated by fraud or mala fides. In the view we have taken, it is unnecessary to consider the question whether the suit is barred by the judgment of the High Court of Madras in Writ Petition No. 158 of 1951 as contended by the respondents. That contention is not dealt with in this judgment. 14. The appeal fails and is dismissed with costs.