Gopalan Nair v. State of Kerala — 1967 DIGILAW 248 (KER)

JUDGMENT : P. Govindan Nair, J. 1. The petitioner seeks to quash acquisition proceedings initiated by Ext. P-3 notification issued under section 3 of the Kerala Land Acquisition Act, 1961 (hereinafter referred to as "the Act"). That notification is in these terms: “Whereas the Government of Kerala have, in notification No. 103071-B1/63/RD., dated 21st March 1963 appointed the Tahsildar, Kozhikode to perform the functions of a Collector under the Kerala Land Acquisition Act, 1961 (Act 21 of 1962). And whereas it appears to the said Collector that the land specified in the schedule below is likely to be needed for a public purpose to wit for the use of the inmates of the Girls Hostel attached to the Ramakrishna Mission High School run by the Sri Sarada Sangham, Cheruvannur notice to the effect is hereby given to all whom it may concern in accordance with the provisions of section 3 (i) of the Act. Schedule District—Kozhikode Taluk—Kozhikode Village—Cheruvannur Desom—Cheruvannur The extent given is approximate Sl. No. Sy. No. Description Extent cents 1. R.S.36/6A2 S.C. wet 2 2. R.S.36/7A2 Garden 6 Total 8" In due course this notification was followed by a declaration under section 6 of the same Act: "Whereas the Board of Revenue, Kerala is satisfied, after considering the reports made by the Collecter under sub-section (2) of section 5 of the Kerala Land Acquisition Act, 1961 (Act 21 of 1962) that the lands specified in the schedule below has to be acquired for a public purpose, the following declaration is issued under section 6 of the Act. Under section 6 of the Act, the Board of Revenue, Kerala hereby declares that the land specified in the schedule below and measuring 0.08 acre, be the same a little more or less, is needed for a public purpose to wit, for the use of the inmates of the Girl's Hostel attached to the Ramakrishna Mission High School run by Sree Sarada Sangham, Cheruvannur and under section 7 of the Act, directs the Tahsildar, Kozhikode to take order for the acquisition of the land. A plan of the land is kept in the office of the Tahsildar, Kozhikode and may be inspected at any time during office hours." 2. The petitioner has also produced Ext. A plan of the land is kept in the office of the Tahsildar, Kozhikode and may be inspected at any time during office hours." 2. The petitioner has also produced Ext. P-2, a notice issued to the petitioner by the 2nd respondent, the Land Acquisition Officer and Tahsildar under section 9 (3) and section 10 of the Act. 3. The ground on which it is claimed that these acquisition proceedings should be quashed are mentioned in paragraphs 5, 6, 7, 8 and 9 of the petition which I may extract: "5. The 3rd respondent Sangham is a society consisting of certain private individuals registered under the Societies Registration Act of 1860 and is not a public company. Compulsory acquisition of land by the State on behalf of such an association is not for a public purpose and the 1st respondent is going beyond its jurisdiction in initiating proceedings for such compulsory acquisition for a private association. The Kerala Land Acquisition Act or any other statute does not authorise the 1st respondent to acquire lands owned by private individuals for such purposes. I understand that no public revenue is being spent for the acquisition. 6. The motive of the respondent is only to harass me and thwart me from my intended desire. I have reason to believe that it was with that motive that the 3rd respondent trespassed upon the plot and occupied the same. It was only when the Sangham found that it will have to surrender the same, that the Sangham approached the 1st respondent to compulsorily acquire the land on its behalf. The 3rd respondent has practically no use of the same. I also understand that the 3rd respondent does not intend to make use of it for a public purpose. 7. The 1st respondent does not seem to have applied its mind in the matter. It has not made any enquiries as to whether such an acquisition would be for a public use and for a public purpose. The State has not also enquired into the motive of the 3rd respondent behind the move. I have already demised, more than 4 acres of contiguous land to the 3rd respondent on very favourable terms, leaving this plot alone earmarking it for a specific purpose and the 3rd respondent knew of this from the beginning. 8. The State has not also enquired into the motive of the 3rd respondent behind the move. I have already demised, more than 4 acres of contiguous land to the 3rd respondent on very favourable terms, leaving this plot alone earmarking it for a specific purpose and the 3rd respondent knew of this from the beginning. 8. It is stated that the acquisition is for a public purpose, to wit for the use of the inmates of the Girl's Hostel attached to the Rama Krishna Mission High School run by the Sri Sarada Sangham, Cheruvannoor. This particular plot is situate more than 50 ft. away from the present hostel. No extension of the hostel is contemplated. Even if the hostel is to be extended, there is enough vacant space in the 4 acres of land leased out by me to the Sangham. If any playground is necessary, there also there is enough vacant space. It is only stated in the notification that this plot is required for the use of the inmates of the Girl's Hostel, without specifying the particular purpose. The authorities do not seem to have considered any of these matters. The proposed acquisition is only to thwart my intention and is mala fide and ought to be quashed. 9. The acquisition proceedings started by the 1st respondent Was in any view only a colourable exercise of power. The proceedings are vitiated by mala fides the only object seems to be to help the 3rd respondent in its unauthorised occupation of the land and to deprive me of my rights in the same. The lands in the possession of the Sangham are more than sufficient for the purposes." 4. It will be noticed from the averments in these paragraphs that the contentions raised are— (1) that the acquisition is for a sangham which is not a company and therefore the acquisition is without jurisdiction; (2) that there is no public purpose for the acquisition and that the authorities concerned have not applied their mind to the question whether there is a public purpose or not; and (3) that the acquisition has been motivated by extraneous considerations and it is urged that the acquisition is mala fide. 5. 5. A counter affidavit has been filed on behalf of the State and it has been pointed out, and I think rightly, that the Sangham is a company within the meaning of that term as defined in section 2 (4) of the Act. It is further urged that they considered all the relevant aspects and that they were satisfied that there is a public purpose. It is also contended that Part 7 of the Act has been complied with, and finally, the plea of mala fides urged by the petitioner has been denied. 6. The arguments before me turned on a large number of points and was not completely in conformity with the pleading. However it is unnecessary to consider all those aspects because certain aspects are clear. The first of these is that Sree Sarada Sanghom referred to in the declaration is a company within the meaning of that term in section 2 (4) of the Act and therefore an acquisition for that company is possible if the conditions under Part 7 of the Act are satisfied. Secondly it is established by high authority that if the acquisition is for a public purpose the fact that it is for the use of a company does not matter and that in such cases compliance with Part 7 of the Act is unnecessary. In support of this proposition it is only necessary to refer to, the decision of the Supreme Court in Pandit Jhandu Lal and others v. The State of Punjab and another A.I.R 1961 S.C. 343. I shall extract a short passage from that decision. Chief Justice Sinha observed as follows: "Section 6 is, in terms, made subject to the provisions of Part VII of the Act. The provisions of Part VII, read with section 6 of the Act, lead to this result that the declaration for the acquisition for a company shall not be made unless the compensation to be awarded for the property is to be paid by a company. The declaration for the acquisition for a public purpose, similarly, cannot be made unless the compensation, wholly or partly is to be paid out of public funds. Therefore, in the case of an acquisition for a company simpliciter, the declaration cannot be made without satisfying the requirements of Part VII. The declaration for the acquisition for a public purpose, similarly, cannot be made unless the compensation, wholly or partly is to be paid out of public funds. Therefore, in the case of an acquisition for a company simpliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition for a public purpose is that the costs of the acquisition should be borne, wholly or in part out of public funds. Hence an acquisition for a company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds." 7. The learned Chief Justice was speaking with reference to the provisions in the Land Acquisition Act, 1894, and it is necessary to note the difference between the provisions in the Land Acquisition Act, 1894 and those in the Act. The main difference necessary for the purpose of this case is the absence of a proviso similar to the proviso to section 6 (1) of the Land Acquisition Act, 1894, in the Act. Not only there is no proviso similar to that in the Act but there is no provision anywhere in the Act insisting that in case of acquisitions for a public purpose public revenues or some fund controlled or managed by the local authority must be utilised for the acquisition. In the absence of such a provision, the inference seems to me to be inevitable that under the Act, an acquisition for a public purpose is permissible even in cases where part or even the whole of the fund is to be supplied by private agencies. 8. In the light of what I have stated above it is unnecessary to examine the contention raised by counsel on behalf of the State that there has been compliance with Part VII of the Act in this case, for the acquisition can be amply supported by the provisions contained in sections 3 to 37 of the Act. 8. In the light of what I have stated above it is unnecessary to examine the contention raised by counsel on behalf of the State that there has been compliance with Part VII of the Act in this case, for the acquisition can be amply supported by the provisions contained in sections 3 to 37 of the Act. I will be examining this proposition presently and the only question that will have to be considered is whether there is a public purpose and how far this Court can sit in judgment on the question as to whether there has been such a purpose or not; and how far a declaration under section 6 of the Act will be conclusive regarding this matter. I may refer to the decisions of the Supreme Court on this aspect and it appears to me that it has now been well settled that the declaration that the purpose of the acquisition is a public purpose is conclusive and can be interfered with only in such cases where the Court is able to infer from the materials available that there has been a colourable exercise of power. This colourable exercise of powers can be posited in cases where from the materials it is clear that the purpose is not patently a public purpose. Reference may be made to the decisions of the Supreme Court in Smt. Somawanti and others v. The State of Punjab and others, A.I.R. 1963 S.C. 151 and also to a recent decision of Justice Ramaswami in Raja Anand Brahma Shah v. The State of Uttar Pradesh and others, A.I.R 1967 S.C. 1081. I shall read the relevant portion in the judgment in Smt. Somwanti and others v. The State of Punjab and others, A.I.R. 1963 S.C. 151. In paragraph 36 of the judgment Their Lordships observed: “Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exercised only where there is a public purpose, leaving aside for a moment the purpose of a company. It appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will be final." Again in paragraph 40 of the same judgment it is said:— "Though we are of the opinion that the courts are not entitled to go behind the declaration of the Government to the effect that a particular purpose for which the land is being acquired is a public purpose we must emphasise that the declaration of the Government must be relatable to a public purpose as distinct from a purely private purpose. If the purpose for which the acquisition is being made is not relatable to public purpose then a question may well arise whether in making the declaration there has been, on the part of the Government a fraud on the power conferred upon it by the Act. In other words the question would then arise whether that declaration was merely a colourable exercise of the power conferred by the Act, and, therefore, the declaration is open to challenge at the instance of the party aggrieved. To such a declaration the protection of section 6 (3) will not extend. For, the question whether a particular action was the result of a fraud or not is always justifiable, provisions such as section 6 (3) notwithstanding." Almost identical in terms is the wording in the decision in Raja Anand Brahma Shah v. The State of Uttar Pradesh and others A.I.R. 1967 S.C. 1081. For, the question whether a particular action was the result of a fraud or not is always justifiable, provisions such as section 6 (3) notwithstanding." Almost identical in terms is the wording in the decision in Raja Anand Brahma Shah v. The State of Uttar Pradesh and others A.I.R. 1967 S.C. 1081. In paragraph 3 of the judgment there is the following passage: "In our opinion, the argument put forward on behalf of the appellant cannot be accepted. It is manifest that the declaration made by the State Government in the notification under section 6 (1) of the Act, that the land was required for a public purpose, is made conclusive by sub-section (3) of section 6 and it is, therefore, not open to a court to go behind it and try to satisfy itself whether in fact the acquisition was for a public purpose. It was pointed out by this Court in Smt. Somawanti v. State of Punjab [ (1963) 2 S.C.R. 774 (A.I.R. 1963 S.C. 151)], that it was for the Government to be satisfied, in a particular case, that the purpose for which the land was needed was a public purpose and the declaration of the Government under section 6 (1) of the Act will be final subject, however, to one exception, namely in the case of colourable exercise of the power, the declaration is open to challenge at the instance of the aggrieved party. " 9. It is unnecessary to multiply further judicial pronouncements on this aspect as these two weighty decisions of the Supreme Court are conclusive on the matter. Then the query is as to whether it can be said on the facts and in the circumstances of this case that the purpose for which the acquisition has been made was a public purpose or a private purpose. In this connection it may be necessary to examine the terms of the notifications as well as the order sanctioning the acquisition and the statements contained also, I think, in the affidavit filed by the State. I may also refer to certain parts of a covering letter forwarding the application to Government containing the request for an acquisition. In this connection it may be necessary to examine the terms of the notifications as well as the order sanctioning the acquisition and the statements contained also, I think, in the affidavit filed by the State. I may also refer to certain parts of a covering letter forwarding the application to Government containing the request for an acquisition. Though this letter mentions various aspects which may not be pertinent, there is this significant portion in the beginning of the letter: "I am enclosing herewith an application for acquisition of a small plot of land almost touching the building where the girls' home run by the Sarada Sangham is housed." And in the order which has been made available to me by the Government Pleader what is stated is this: "Sanction is accorded for the acquisition of 10.5 cents of land adjacent to Sy. Nos. 36/6A pt. and 36/7A pt. of Cheruvannur amsom, Kozhikode taluk, for the use of the inmates of the Girls' Hostel attached to the Ramakrishna Mission High School run by the Sri Sarada Sangham, Cheruvannur. " 10. The notification under section 3 which I have already read mentions that the land specified in the schedule thereto "is likely to be needed for a public purpose to wit for the use of the inmates of the Girls Hostel attached to the Ramakrishna Mission High School run by the Sri Sarada Sanghom, Cheruvannur". And in the declaration there is a repetition of the same wording. It is said there, that the land in question "is needed for a public purpose, to wit, for the use of the inmates of the Girls Hostel attached to the Ramakrishna Mission High School run by Sri Sarada Sanghom, Cheruvannur ". 11. In more places than one in the counter affidavit that has been filed on behalf of the State, the 1st respondent, it has been asserted that there is a public purpose and that the land is indispensable for the use of the inmates of the Hostel. I may extract the portions of the counter affidavit. Paragraph 5, runs thus: "The plot is situated within a distance of 20 feet from the building constructed as the hostel of the inmates including both small and grown up girls. I may extract the portions of the counter affidavit. Paragraph 5, runs thus: "The plot is situated within a distance of 20 feet from the building constructed as the hostel of the inmates including both small and grown up girls. The Sanghom authorities had to take up the question of acquiring the site consequent on the threatened trespass by the petitioner into the plot which lead to a situation of insecurity to the inmates of the hostel." And in paragraph 6 it is said: "The Government have satisfied that the acquisition is for public purpose and sanction accorded for the acquisition...." Finally in paragraph 8 there are the following averments: ''The first respondent sanctioned the acquisition proceedings after fully satisfying the genuineness of the purpose. The site is for a public purpose. The difficulty in having a private pocket in the close vicinity of the hostel was not desirable in public interest. The site in question is within a distance of 20 ft. from the hostel. The first respondent has satisfied the necessity to acquire the plot for the institution." 12. There is no doubt, some dispute as to the exact distance between the end of one of the buildings situated in the larger compound which at one time belonged to the petitioner who very graciously made available the same to the Sanghom, and the road. According to the petitioner the distance is 50 ft. But an evaluation with a mathematical precision in such matters is uncalled for in determining the general question as to the nature of the purpose for which the acquisition is made. If the purpose is a public purpose, the extent of the land required for the purpose and what will be considered as adequate for that purpose must, I think, remain solely a matter for decision by the State Government. This controversy regarding the distance of the land proposed to be acquired from the building in existence is therefore immaterial. There is no definition of the term public purpose in the Act and the matter has to be determined not on the interpretation of any statutory provisions but on general aspects. This is however not a matter res Integra, for the Supreme Court has already pronounced on this. There is no definition of the term public purpose in the Act and the matter has to be determined not on the interpretation of any statutory provisions but on general aspects. This is however not a matter res Integra, for the Supreme Court has already pronounced on this. The following passage from the judgment in Smt. Somawanti and others v. The State of Punjab and others, A.I.R. 1963 S.C 151 would illustrate the point: "The inclusive definition of 'public purpose' in section 2 (f), Land Acquisition Act not being compendious is not useful in ascertaining the ambit of that expression. Broadly speaking the expression 'public purpose' would, however, include a purpose in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. Public purpose is bound to vary with the times and the prevailing conditions in a given locality and, therefore, it would not be a practical proposition even to attempt a comprehensive definition of it. It is because of this that the legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose." 13. Applying the above principles, it is difficult to say that the use of the inmates of the hostel run for the benefit of the girl students studying in the town of Calicut is not a public purpose: "The acquisition is not for the benefit of any particular individual or even of a specified or defined society. It is a fluctuating body of school going girls and therefore a section of the public who are to be benefited by this acquisition. Considering the location of the place and the availability of educational institutions in the city and the availability of the space in the town and the proximity the alleged close proximity of the land sought to be acquired to the hostel building, the government have come to the conclusion that this land is required for the use of the inmates of the hostel and that such need spells a public purpose.” I do not think that this Court can sit in judgment on this view taken by the State Government. And I have to conclude that the purpose for which the land has been acquired as stated in the notification under section 3 and the declaration under section 6 is a public purpose. 14. I need hardly say that l am not at all satisfied that there has been any mala fide exercise of power or there has been any fraud on the statute or for that matter there has been any colourable exercise of power. In fact, apart from the use of the expression mala fide in two of the paragraphs in the petition which I have already read, no material has been placed before me on which it is possible to reach any such conclusion. No doubt it is true that the relationship between the petitioner and the Sanghom for reasons unknown to me, have become strained and there has been an attempt on the part of the Sanghom on the one hand to retain possession of the plot which was already in their possession by acquisition and a frantic effort on the part of the petitioner to get possession of the land. The existence of a controversy such as this may at times throw some light on the question whether the Government had resorted to the machinery for acquisition in order to support one or other of the contesting parties. But it can never be a conclusive circumstance and too much reliance on that circumstance can be dangerous. Here from the facts stated it appears to me to be a very reasonable view that the land is acquired to serve a public purpose and there the matter must end; any further probe into the ultimate motive of the contesting parties is immaterial; the only question being whether the State Government have acted within the ambit of the powers conferred by the Act. This they have done. 15. I am not satisfied that the acquisition proceedings call for interference by this Court. I dismiss this writ application but without any order as to costs.