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V. Gopalakrishna v. The Secretary, Board Of Revenue, Madras & Another

Madras High Court

May 1, 1953

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The petition is an application under Article 226 of the Constitution seeking issuance of a writ of certiorari to quash a Government of Madras notification dated 22 January 1953 made under S.6(1) of the Land Acquisition Act. The subject land is a vacant site of about 1 acre and 39 cents in the village of Pithapuram, immediately south of an existing market that can expand only to the south. The land originally belonged to the Maharajah of Pithapuram. The Panchayat Board attempted to acquire the site from the Maharajah beginning in 1945, passed multiple resolutions and offered purchase prices, but on 25 March 1947 the petitioner purchased the site for Rs. 10,200.

The Panchayat Board thereafter resumed acquisition efforts, passing resolutions requesting acquisition under the Land Acquisition Act and a S.4(1) notification was published on 12 December 1950. The petitioner filed objections under S.5 and sought withdrawal of proceedings, including offering a gift of 16 cents to the Panchayat. There is disagreement between the parties as to whether the Panchayat rescinded earlier resolutions in 1951. The petitioner also approached the Board of Revenue alleging irregularities and that the land was worth Rs. 45,000. An enquiry by an Inspector was said (in petitioner’s affidavit) to report that acquisition was unnecessary, but that report is not in the record before the Court. Ultimately, the Government issued a S.6(1) declaration on 22 January 1953; the petitioner challenges the validity of that notification in this petition.

Legal Issues Presented

Whether the acquisition was mala fide — i.e., whether there was no need to expand the market and the real object of the acquisition was to deprive the petitioner of his property.
Whether there was non-compliance with the statutory requirements of the Land Acquisition Act (including the validity of the Panchayat Board resolutions), rendering the acquisition illegal.

Arguments of the Parties

Petitioner's Arguments

The market did not need expansion; the acquisition was unnecessary and the real object was to deprive the petitioner of his property (mala fides).
The acquisition proceedings did not comply with the requirements of the Land Acquisition Act — specifically, earlier resolutions authorising acquisition had been rescinded (allegedly on 20 April 1951 and 26 May 1951) and therefore there was no valid Panchayat resolution supporting the acquisition.
The petitioner had offered a gift of 16 cents and contended that such a small strip would have sufficed for market needs; he argued the Panchayat’s actions were maliciously targeted at him.
The petitioner relied on authorities (including Privy Council decisions and Re Manickchand Mahata) to support the contention that courts may examine the legality of steps leading to an S.6 declaration and that a colourable use of the Act could be set aside.

Respondents' Arguments

The market was insufficient, congested and had resulted in accidents; expansion was required and could occur only southwards, making acquisition of the petitioner's land necessary.
The 16-cents offered by the petitioner would be insufficient for the Panchayat's needs.
It was denied that the Panchayat acted with malice; the acquisition process began prior to the petitioner's purchase in 1947 and therefore could not have been targeted at him personally.
With respect to the alleged rescission of earlier resolutions and alleged improper composition of the Panchayat board, the respondents contended (and provided an account) that the 20 April and 26 May 1951 matters did not amount to rescission and that the two members said to have been forced to resign had become government servants and in consequence were disqualified under the Village Panchayat Act (thus not compelled to resign by the Government).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Suryanarayana v. Province of Madras (Full Bench of this Court)	Held that a declaration under S.6 of the Land Acquisition Act is conclusive evidence that the land is needed for a public purpose and cannot be questioned in a court of law except where the government acted in fraud of its powers.	The Court relied on this Full Bench decision to hold that, absent allegation of fraud by the Government, the petitioner cannot challenge the S.6 notification on the ground that there was no need for a market or that the Panchayat Board was actuated by malice.
Luchmeswar Singh v. Chairman of the Dharbhanga Municipality (Privy Council)	Where proceedings under the Land Acquisition Act were used colourably (in that case to enable a gift by the Court of Wards which was beyond its competence), such use constituted a fraud on the powers conferred by the Act and could be set aside.	The Court distinguished that case: it found the present acquisition to be real and within the Government’s competence and therefore concluded Luchmeswar Singh was inapplicable to justify quashing the S.6 notification here.
Trustees for the Improvement of Calcutta v. Chandrakanta Ghosh (Privy Council)	Observations that including land in a scheme not because it was needed for the Act's purpose but to exact an "exemption fee" would be a misuse/ultra vires act; such misuse would entitle the owner to succeed.	The Court held these observations had no application on the facts before it, because the present acquisition was for improving market conditions and not for extracting exemption fees.
Re Manickchand Mahata v. The Corporation of Calcutta and the Calcutta Improvement Trust (Greaves, J.)	Held that although a S.6 notification is conclusive for certain evidential purposes, the court is entitled to inquire into the validity of the steps leading up to the recommendation and the legality of acts of the Corporation and the Trust.	The present Court expressed inability to agree with the wide observations of Greaves, J., but noted that because it concluded there had been a valid Panchayat resolution, it did not need to decide that question definitively in this case.
C.M.P. No. 2778 of 1951 (Bench of this Court)	Held that a S.6 notification is not liable to be attacked on the ground that the recommending resolution was mala fide if the owner had an opportunity of putting forward objections before the Government.	The Court followed this decision, holding that because the petitioner had filed objections under S.5(a) and had an opportunity to be heard before the Government, the S.6 notification could not be quashed on the ground that the Panchayat resolution was mala fide.

Court's Reasoning and Analysis

The Court proceeded in these major analytical steps, as recorded in the opinion:

Statutory effect of S.6: The Court emphasised that S.6 of the Land Acquisition Act provides that a declaration by the Government under that section is conclusive evidence that the land is needed for a public purpose. The Court relied on the Full Bench decision in Suryanarayana v. Province of Madras to treat the S.6 declaration as not open to challenge in a court of law except where the Government has acted in fraud of its powers.
Mala fides allegation: The petitioner alleged the acquisition was mala fide (no genuine need; targeted deprivation). The Court analysed available facts and the parties' affidavits and concluded there was no allegation that the Government itself acted in fraud of its powers. The Court therefore held that allegations of malice in the Panchayat Board members did not permit quashing of the Government's S.6 notification, particularly because the petitioner had an opportunity to present objections to the Government under S.5(a).
Precedents on colourable use of the Act: The petitioner relied on Privy Council authorities (Luchmeswar Singh; Trustees for Improvement of Calcutta) and on Re Manickchand Mahata to argue courts may examine the validity of steps leading to an S.6 declaration. The Court carefully distinguished Luchmeswar Singh and the Calcutta Trustees case as concerned with colourable or misuse of legislative power; the Court found those circumstances absent here because the acquisition was genuinely for market improvement. Regarding Re Manickchand Mahata, the Court stated disagreement with the broad proposition that the steps leading to recommendation are always examinable, but observed that because it found a valid Panchayat resolution in this case, it did not need to decide that broader legal point definitively.
Opportunity to be heard: The Court placed significance on the fact that the petitioner had filed objections under S.5(a) and thus had an opportunity to present objections to the Government before the S.6 notification was issued. The Court relied on an earlier Bench decision (C.M.P. No. 2778 of 1951) establishing that where such an opportunity existed, an S.6 notification is not liable to be attacked merely because the recommending resolution was mala fide.
Validity of Panchayat resolution and composition: The petitioner argued that earlier resolutions had been rescinded and that the Panchayat Board that passed the final resolution (10 November 1952) was not properly constituted because several members of his faction were absent or disqualified. The Court examined the respondents' account and concluded that the two members said to have been compelled to resign had in fact become government servants and thereby ceased to be members under the Village Panchayat Act; accordingly there was no compulsion by the Government and no invalidation on that account. The Court further noted factual disagreement about alleged rescission of earlier resolutions and held the petitioner was not in a position to successfully challenge the 10 November 1952 resolution.
Proper remedy: The Court observed that questions of the kind raised by the petitioner (particularly contesting the merits or certain factual issues) are more appropriately addressed in a suit, and that was an additional reason to decline interference with the S.6 notification by way of writ proceedings.

Holding and Implications

Holding: The petition is dismissed. The Government of Madras notification dated 22 January 1953 under S.6(1) of the Land Acquisition Act is not quashed. The petition is dismissed with costs, including one set Advocate's fee of Rs. 250.

Implications and immediate consequences:

The direct effect on the parties: the S.6 declaration stands and the acquisition process relied upon by the Government is not set aside by this writ petition; the petitioner remains subject to the acquisition notified on 22 January 1953.
The Court declined to allow a challenge premised on alleged mala fides of the Panchayat Board where (a) there was no allegation of Government fraud and (b) the owner had an opportunity to make objections to the Government under the Act.
The Court expressed disagreement with broad statements (attributed to Greaves, J. in Re Manickchand Mahata) permitting wide judicial inquiry into preliminary steps leading to S.6, but it did not finally resolve that broader legal question because it found a valid resolution in the facts before it.
The Court noted that certain disputes of fact and issues of the character ordinarily examined in equitable or ordinary suit proceedings are better determined in a suit rather than by writ; on that procedural basis it declined to interfere.
No new broad precedent was framed beyond the application of existing authorities (as discussed above) to the facts of this case; the immediate ruling is confined to dismissing the petition and upholding the S.6 notification on the stated grounds.

Signed in the opinion: V.C.S (as recorded in the text). The summary above is confined to matters expressly stated in the provided opinion and does not add or infer facts or law beyond that text.

Show all summary ...

This is an application under Art. 226 of the Constitution for the issue of a writ of certiorari to quash the notification of the Government of Madras dated 22nd January 1953 under S. 6 of the Land Acquisition Act. The land proposed to be acquired is a vacant site of the extent of about I acre and 39 cents situated in the village of Pithapuram. Just to the north of this plot is a market where weekly shandis are held. The market is bounded on the east by a public road and on the north and west by a channel called “The Cherugula kalvai.” If the market is to expand, it can be only on the south. The Maharajah of Pithapuram to whom the site belonged offered it for sale in the year 1945. On 15th August 1945 the Panchayat Board of Pithapuram passed resolution No. 74 to acquire it from the Maharajah by private sale for the purpose of the market. As the negotiations did not make much of a progress, a further resolution No. 53 was passed on 17th June 1946 requesting the Maharajah to grant the site at a reasonable cost to the Panchayat and by a further resolution No. 230 dated 31st January 1947 the Panchayat Board offered a price of Rs. 10,000 for the site. It was at this stage that on 25th March 1947 the petitioner purchased the site from the Maharajah for a price of Rs. 10,200. The Panchayat Board then passed resolution on 30th September 1947 requesting the Government to acquire the plot under the provisions of the Land Acquisition Act. The petitioner raised objections to the acquisition before the Revenue Officers and after protracted correspondence the Panchayat Board passed finally resolution No. 108 on 31st October 1950 agreeing to the acquisition in the terms mentioned by the Revenue Divisional Officer. Thereafter, a notification under S. 4(1) of the Land Acquisition Act was published on 12th December 1950. The petitioner filed his objections to the acquisition under S. 5 of the Act. He also endeavoured to get the Panchayat Board itself to rescind its resolution dated 31st October 1950 and to withdraw from the acquisition and offered to make a gift of 16 cents to the Panchayat if they would drop the acquisition proceedings. It is stated in the affidavit in support of the petition that resolutions were passed on 20th April 1951 and 26th May 1951 canceling the previous resolution dated 30th September 1947, for acquisition of the plot. This is, however, denied on behalf of the respondents. They state that a requisition was received from the Revenue Divisional Officer informing the Panchayat that the acquisition would be completed during 1951-1952 and asking the Panchayat to be ready with the necessary funds and that in reply to this, resolution No. 6 was passed on 20th April 1951 stating that the Panchayat Board had already that information; that on 26 May 1951 when a resolution was moved for reconsidering the matter it was ruled as out of order and that thereafter the payment of Rs. 11750 by the president towards the cost of the acquisition was ratified by the Panchayat Board by its resolution No. 86 dated 31st August 1951.

After this the petitioner moved the Board of Revenue for withdrawing from the proceedings alleging various irregularities and stating that the site was worth Rs. 45000 and that there was no need to acquire the same. It is stated in the affidavit of the petitioner that the Inspector of Municipal Councils and Local Boards was asked to report on the necessity for the acquisition of this plot, that he held an enquiry and sent a report that there was no need for the acquisition arid that the Panchayat Board was not acting bona fide in attempting to acquire the land. The report however is riot among the records. Eventually, the Government considered the entire matter and decided to acquire the site and issued a notification under S. 6(1) of the Act on 22nd January 1953. It is the validity of this notification that is now in question.

Two points have been urged by the petitioner in support of this petitioner: (1) There was no need to expand the market; the real object of the accquisition was to deprive the petitioner of his property and the proceedings are therefore mala fide and liable to be set aside; and (2) there was no compliance with the provisions of the Act and therefore the acquisition Was illegal.

(I) The contention on behalf of the petitioner is that the Panchayat is a small one; that the existing market is more than ample to satisfy the requirements of the public; that he was prepared to make a gift of 16 cents and that would in any event have sufficed and that the real object of the acquisition was to deprive the petitioner of his property. The counter-affidavit of the respondents states that the market is insufficient for holding the weekly shandis, that it is congested and that has resulted in accidents, that as it could expand only southwards it had become necessary to acquire the site belonging to the petitioner and that the small strip of 16 cents offered would be quite insufficient for the needs. It is also denied that the acquisition was started with the object of depriving the petitioner of his properties.

It cannot be maintained that the acquisition of property for the purpose of market is not for a public purpose. The only question then is whether on the facts of the case there was need for such acquisition. S. 6 of the Land Acquisition Act provides that a declaration under that section shall be conclusive evidence that the land is needed for a public purpose. It has accordingly been held by a Full Bench of this Court in Suryanarayana v. Province of Madras(1) that a declaration made under that section could not be challenged in a Court of law. Leach C.J observed:

“Sub-S. 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.”

In this case, there is no allegation that the Government has acted in fraud of its powers. What all is alleged is that the resolutions of the Panchayat Board were actuated by malice. It would therefore follow that it is not open to the petitioner to challenge the validity of the notification on the ground that there was really no need for a market or that the Panchayat Board was actuated by malice against him. Mr. N. Subramaniam, the learned Advocate for the petitioner argued that the present case was governed by the decision of the Privy Council in Luchmeswar Singh v. Chairjan, Dharbanga Municipolity. In that case during the minority of the Maharajah of Dharbhanga, properties belonging to him were taken over by the Municipality of Dharbhanga in proceedings taken under the Land Acquisition Act of 1870 the Court of Wards waiving compensation due under the Act. It was found that in substance the transaction was one of gift by the Court of Wards to the Municipality and that proceedings under the Land Acquisition Act were taken colourably with the object of enabling the Court of Wards to make a gift which was not within its competence. It was held by the Privy Council that this was a fraud on the powers conferred under the Land Acquisition Act. In the present case, the Government is competent to acquire lands for purposes of market and the acquisition is real and not colourable. Reliance was also placed on certain observations of the Privy Council occurring in Trustees for the Improvement of Calcutta v. Chandrakanta Ghosh(2), There, an acquisition of land for the purpose of Calcutta Land Improvement Trust was challenged on the ground that the true object of the acquisition was not to improve the road conditions in Calcutta but to exact an exemption fee from the owner. Dealing with this contention, the Privy Council observed as follows:

“The object of this section is to give an opportunity to owners of land to request the abandonment of its compulsory acquisition, and it only comes into operation where land has been properly included in a scheme, as required for purposes of the Act. To hare included land within the area of the scheme not because it was wanted for purposes of the Act, but in order to exact an exemption fee from the owner would, in the opinion of their Lordships, have been a misuse of the powers conferred upon the Board, and if in fact the Board had included the land of the respondent in the scheme merely for the purpose of exacting exemption fees, the Board would have acted ultra vim and the respondent would have been entitled to succeed in his actions.”

These observations clearly have no application to the present case as the present acquisition has been made for improving the market conditions. The utmost that can be said by the petitioner is that in deciding upon acquiring his property for the purpose of the market the members of the Panchayat had also the malicious satisfaction that it was the petitioner's property that was being acquired. That, however, is not a ground for holding that the acquisition is illegal.

Moreover the petitioner had an opportunity of putting forward all his objections on the merits to the acquisition of the property before the Government, He did file his objections under S. 5(a) and it is after hearing those objections that the Government decided to acquire the land and issued the notification under S. 6. In C.M.P No. 2778 of 1951 a Bench of this Court of which I was a member held that a notification under S. 6 was not liable to be attacked on the ground that the resolution on which the acquisition was made was mala fide and engineered by political opponents, if the owner had an opportunity of putting forward his objection before the Government. Following this decision, it must be held that the notification of the Government dated 22nd January 1953 under S. 6 of the Act is not liable to be quashed even if the resolution of the Panchayat was inspired by motives of personal illwill against the petitioner.

I must add that even on the facts I am not satisfied that the Panchayat Board was actuated by any malice in passing a resolution for the acquisition of the site in question for the purpose of the market. The Board had been attempting to acquire the property even from 1945 before the petitioner came on the scene and it cannot therefore be said that they were actuated by an intention to deprive the petitioner of his property.

It is next contended that the notification under S. 6(1) is bad because there had been no proper resolution by the Panchayat Board for acquisition of the property. It is urged that the original resolution dated 30th September 1947 had been rescinded by resolutions dated 20th April 1951 and 26th May 1951 and that the Board which passed the final resolution for acquisition dated 10th November 1952 was not really competent to do so because two of the members belonging to the petitioner's faction had been compelled by the Government to resign, a third member of that faction had died and a fourth had vacated his seat by continued absence. There is no substance in this objection. Apart from the fact that the parties are not agreed as to what happened at the meetings on 20th April 1951 and 26th May 1951 the petitioner cannot succeed unless he is in a position to challenge the validity of the resolution dated 10th November 1952. Counsel for the petitioner states that two of the members had been obliged by the Government to resign and that the resolution dated 10th November 1952 passed in their absence is invalid. The facts are that these two persons became Government servants when the Government took over the estate, and they ceased to hold office as members by reason of the provisions contained in the Village Panchayat Act and what the Government did was merely to send an intimation to them to that effect. As those two members ceased to be members as a result of their continuing in service as Government employees there is no question of compulsory resignation. This objection must accordingly fail on the merits.

I have so far assumed that the absence of a valid resolution by the Panchayat Board would be a good ground for holding that a notification under S. 6(1) would be bad. But, that however does not appear to me to be the correct position. The petitioner relied on the decision in Re Manickchand Mahata v. The Corporation of Calcutta, and the Calcutta Improvement Trust, where Greaves, J., held

“that though the notification under S. 6 of the Land Acquisition Act is conclusive so far as S. 4 of the Evidence Act is concerned yet the Court is entitled to enquire into the validity of the steps leading up to the recommendation, and was competent to inquire into the legality or otherwise of the acts of the Corporation and the trust.”

In Luchmeswar Singh v. Chairman of the Dharbhanga Municipality, it was held by the Privy Council that where the validity of an acquisition was challenged, it would be open to the Court to consider whether there had been due compliance with the provisions of the Act. Both these authorities are relied on on behalf of the petitioner as supporting the position that if there was no valid resolution by the Panchayat Board, the acquisition by the Government would be open to attack notwithstanding the declaration under S. 6(1). There cannot be any doubt that if the Government in exercising the powers under the Land Acquisition Act does not comply with the requirements of the statute, its action must be held to be ultra vires. But, in this case the Government has complied with all the requirements of the statute and the acquisition is not liable to be challenged on the ground that it is not in accordance with the Act. The further contention that the notification under S. 6(1) is liable to be impugned on the ground that it was in furtherance of a resolution of the Panchayat Board which was not duly passed is open to question. It is difficult to see why an act of the Government which is valid according to the provisions of the Land Acquisition Act should be open to attack because of the infirmity attaching to a resolution of the Panchayat Board. It is for the Government to consider that resolution and decide whether they should act upon it. If they had decided to act upon it and issued a notification under S. 6(1), it is not within the province of the Court to hold that the Government ought not to have acted upon the resolution and taken action under the Act. With all respect I am unable to agree with the rather wide observations of Greaves, J., in Re Manickchand Mahata v. The Corporation of Calcutta and the Calcutta Improvement Trust. But in the view which I have expressed that there has been a valid resolution, this question does not arise.

I should add that a suit is the more appropriate remedy for considering questions of the kind raised by the petitioner and that on that ground also I should decline to interfere with the notification in proceedings by way of writ.

This petition is accordingly dismissed with costs, one set Advocate's fee Rs. 250.

V.C.S

Land Acquisition Act.