V. Vasudeva iyer vs The Mambalam Kasiviswanathar Co-Operative Building Society Ltd., and others.

By a notification under S. 4 (1) of the Land Acquisition Act, 1894 dated 13th July 1960, an extent of five acres and 30 cents comprised in R. S.

No. 171 part, was sought to be acquired on the ground that the land was needed for a public purpose, to wit, for construction of houses to the

members of the Mambalam Kasiviswanathar Co-operative Building Society Ltd., which is the first respondent in this petition. This was followed by

a notice dated 18th August 1960, from the Land Acquisition Officer, who is the third respondent, asking for statements of objections within 15

days from the date of the publication of the Notification under S. 4 (1). The petitioner who claims to be the owner of the land filed his objections

not within 15 days specified in the notice, but within 30 days of the publication of the notification under S. 4 (1), On a consideration of his

objections, and after following the procedure prescribed by Sub-S. (2) of S. 5-A. a declaration was made on 7th April 1961, under S. 6 (1) and

(2), that the land was required for a public purpose. The only modification appears to be that instead of 5 acres 36 cents, the acquisition was

restricted to an extent of 4 acres 60 cents comprised in the survey number already mentioned. Thereafter followed notices under Ss. 9 and 10 and

an award in December 1961. The petitioner seeks to quash the acquisition proceedings on four grounds. The first of them is that the acquisition

being one for providing houses to members of a co-operative society, it is no better than an acquisition for providing a house for a private

individual, and is, therefore, not for a public purpose. It is said that if instead of A or B individually acting, they collect themselves into a group,

form themselves into a society, and in the name of the society persuade the Government to acquire land for the purpose of constructing houses for

themselves, the circumstances of the acquisition can by no means be regarded as amounting to a public purpose, any more than an acquisition for

purpose of an individual. But the petitioner is pitted against very strong objections to the point raised by him. One of them, is once a declaration

has been made under Ss. 6 (1) and (2), Sub-S. (3) of that section gives a conclusive effect to that declaration. The subsection says that the

declaration shall be conclusive evidence that the land is needed for a public purpose. That obviously means that the petitioner is not entitled to go

behind the declaration in spite of its conclusive effect, and canvass the presence of public purpose, for. if the petitioner were allowed to challenge

it, it is plain that the declaration is no longer conclusive evidence of the fact declared. The purpose of the subsection is to prevent any enquiry into

the existence of a public purpose, once a declaration has been made of its existence. The second objection to the point raised is that this Court in

Thambiran Padayachi v. State of Madras (1), held that an acquisition for a purpose similar to the one here in question was a public purpose.

Rajamannar C.J and Venkata-rama Aiyar, J. held that schemes for construction of houses for clearing slum areas, relieving congestion and housing

poor people are for a public purpose as they tend to promote social welfare and prosperity. The acquisition might be in favour of individuals but

that makes no difference provided they were benefitted not as individuals but in furtherance of a scheme of public utility. It may be noticed that was

also a case of a cooperative society and acquisition of lands in connection with a scheme of house building for its members. The first point of the

petitioner is, therefore, rejected.

It is next contended that the first respondent-society being a company as defined in the Act, and the purpose for which the acquisition is made is

within the ambit of S. 40 (1) (b), the acquisition should have been made only under Part VII. The argument is that where the acquisition is for a

public purpose but the specific purpose falls both within the scope of Part II and Part VII, the special provision in Part VII must prevail and should

be followed. I can find no support for this line of reasoning, in the scheme of the Land Acquisition Act. Were the matter res Integra, it would have

been, perhaps, necessary to consider it in some detail. But a like point appears to have been raised and answered in the negative by the Supreme

Court in Jandulal v. State of Punjab (2). The question that was considered was, whether or not acquisition proceedings there had been vitiated by

reason of the admitted fact that no proceedings under Part VII of the Act had been taken in making the acquisition. In answering the question, the

Supreme Court observed, after a consideration of S. 17 (2) (b) as amended and even apart from that,

Hence, the acquisition for a public purpose as also acquisition for a company are governed by considerations of public utility. But the procedure

for the two kinds of acquisitions is different, in so far as part VII has made substantive provisions for acquisitions of land for companies.

(1) P. Thambiran Padayachi and Others Vs. The State of Madras and Others,

(2) Pandit Jhandu Lal and Others Vs. The State of Punjab and Others, .

It is true that in the specific form in which the question is raised and as set out by me, it does not appear, in the judgment, to have been raised in

that case. But, in my opinion, the effect of the decision of the Supreme Court is certainly against the petitioner, on this point. So long as a part at

least of the compensation is to come from the public coffer, the acquisition has necessarily to be only under Part II. Where an acquisition is for a

company, the purpose for which can be said to be within the scope of S. 40 (1), it is entirely for the Government to decide whether they would

apply Part VII or Part 11. For instance there may be cases of urgency in respect of which there are no provisions in Part Vll like S. 17 to make

acquisition expeditiously to meet the urgency. I am mentioning this only by way of illustration to show that it is in the discretion of the Government

to decide, in the light of particular circum-stances and facts, whether the acquisition should be under Part II or Part VII. The second point,

therefore, has no substance either.

It is next argued that S. 5-A should be construed strictly because the acquisition of land is in the nature of taking property and inasmuch as the

Collector gave, in his notice, only 15 days to the petitioner to show cause under S. 5-A, the entire acquisition proceedings have been vitiated.

Apparently, this point is urged on a misapprehension the scope of S. 5-A(1) That sub-section does not speak of any notice to be given by the

Collector, much less does it require him to give any specified time for submission of objections. All that the subsection says is that any interested

person may file his objections within thirty days from the date of the notification under S. 4(1). Therefore, there is no basis for the petitioner''s

complaint that the Land Acquisition Officer failed to follow the procedure prescribed by S. 5-A. Apart from that, it is common ground that the

petitioner filed his representations within the time specified in S. 5-A (1) and the same were duly considered by the Land Acquisition Officer

before the declaration was made under S. 6. In the circumstances, therefore, I think it is impossible for the petitioner to contend that S. 5-A has

not been complied with.

Lastly, the petitioner contends that the acquisition is bad under Art. 14 of the Constitution. The basis for this argument is supposed to be some

publication in a newspaper to the effect that the Government proposed that no land within the Corporation limits of the City of Madras should be

acquired for the purpose of providing houses, and that in the case of certain other acquisitions, the Government, following their declared policy,

dropped that acquisition. It must be stated that this point has not been been in the affidavit in support of the petition. The point based on

discrimination can only be made when the necessary particulars or facts are given in the affidavit in support of the petition. Sri R. M. Seshadri,

learned Counsel for the petitioner, applied for leave of this Court for time to file an additional affidavit, so that he could raise this point making the

necessary allegations. This was opposed by the learned Advocate General, and I consider properly. The point if it has to be investigated will

involve questions of fact which could be determined only in the light of evidence. I decline to allow this point based on discrimination to be taken at

this stage. Apparently, deriving inspiration from the recent judgment of this Court, in W. A. No. 73 of 1961 in which it was held that once a

declaration has been made and published under S. 6, the existence of public purpose is no longer justiciable , it is sought to be argued for the

petitioner that the acquisition in this case was a fraud upon the powers of the Government, and that, on this ground, the acquisition should be

quashed. This point again has not been taken in the affidavit in support of the petition. Further, the observations I have made in respect of the point

based on discrimination equally apply to this plea of fraud. Without even a plea of fraud, no Court can scan into it. The petition fails and is

dismissed with costs of respondents 2 and 3, Counsel''s fee Rs. 100.