Swarnathachi vs The Special Tahsildar, Land Acquisition, K. Atmanatha Iyer

K. Veeraswami, C.J.—A small piece of land in Yadayamudayan village, in Pattukkottai Talrk, was acquired by the Government for

purposes contemplated by the Madras Irrigation Works (Construction of Field Bothies) Act, 1959 The declaration u/s 6 of the Land Acquisition

Act was made after completing the enquiry u/s 5-A of the said Act. But it turns out that the acquisition was made on the full contribution basis and

the entire money for the acquisition was collected from the party who stood to be benefited by the acquisition for purposes of irrigation. The

petition under Article 226 of the Constitution, from which the appeal arises, was to quash the land acquisition proceedings on the ground that the

proviso to Sub-section (1) of Section 6 of the Land Acquisition Act had not been complied with; that is to say that no contribution was made from

public funds. But the petition was dismissed on the ground that full recovery by the Collector was authorised by the Madras Irrigation Works

(Construction of Field Bothies) Act, 19,59. Hence this appeal.

We are of the view that the requirement under the proviso to Sub-section (1) of Section 6 of the Land Acquisition Act is mandatory. Unless a

part of the cost of the acquisition comes out of public revenues or some fund controlled or managed by a local authority no declaration u/s 6 (1)

can possibly be made. This is quite clear from the proviso. We do not think that the Madras Irigation Works (Construction of Field Bothies) Act,

1959 has anything to do with this requirement. That is an independent enactment not related to the acquisition but to the provision for the

construction or digging of field bothies by the Government and by owners of lands entitled to irrigation under certain irrigation works in the State of

Madras. Merely because it enables the recovery of the entire amount, it does not follow that it ipso jure does away with the requirement under the

proviso to Sub-section (1) of Section 6 of the Land Acquisition Act. Since no contribution of any part of the cost was made from the public

revenues, the declaration was clearly invalid and has to be quashed.

Mr. Habibullah Badsha contends that as a result of the non-compliance with the proviso aforesaid, the entire acquisition proceedings are liable

to be quashed and, in support of his contention, he relies on Smt. Somavanti and Others Vs. The State of Punjab and Others, . We are unable to

accept his contention. In that case the Supreme Court was concerned with the colourable exercise of power. That question would arise only where

the purpose for which the acquisition Was made was not a public purpose but nevertheless the Government sought to acquire the land in the

colourable exercise of power of eminent domain. That is not the case here. The purpose for which the acquisition was made was a public purpose

; on that there can be no question. If there was a colourable exercise of power, learned Counsel would be right in contending that the entire land

acquisition proceedings should be quashed. In the instant case, as public purpose is present, that will save the notification u/s 4 (1) and also the

enquiry and report u/s 5-A of the Land Acquisition Act. All that goes is the declaration u/s 6 (1) of the Act. To that extent the appeal is allowed.

No costs.