This is a Writ Application filed under Article 226 of the Constitution of India for a Writ of Mandamus or any other writ of like nature for declaring Notifications Nos. 136/5/64-M dated 21-7-64, 136/5/64-M dated 16-2-1965 and the subsequent Notifications or Orders issued by the Government of Manipur Secretariat (Revenue Branch) acquiring 30 acres in Dag Number 1031 and .03 acres in Dag No. 1032, covered by old Patta No. 65/761 and 631 B. T. corresponding to new Patta No. 65/60 B.T., situate in Thanga Nongmaikhong village, belonging to the petitioner, under the Land Acquisition Act (Act I of 1894) (hereinafter called as the Act) as illegal and for restraining the respondents from acting in pursuance of the aforesaid Notifications.

2. The case of the petitioner is that he is the owner of the land covered by old Patta Nos. 65/761 and 631 B.T., corresponding to new Patta No. 65/60 B.T. situate in Nongmaikhong village. The land consists of home-stead and paddy land. In the recent survey operations, it was divided into five dags of land, namely. Dags Nos. 1031, 1032, 1034, 1036 and 1037. As the preparation of final publication of the records of rights was not yet done, the division of dags was not finally approved. Some Congress workers of Nongmaikhong village, led by Ningthoujam Gulamjat Singh and others, filed an application before the A. S. and S O. Moirang, alleging that the petitioner encroached into the village cattle path and prayed for his eviction therefrom The A.S. and S.O. registered the case in Miscellaneous Case 1031 of 1963 and made an enquiry. But, he did not find any encroachment.

The above Congress workers again approached the Chief Minister, Government of Manipur with the same allegations. The Chief Minister forwarded the application to the Settlement Officer for necessary action. As directed by the Settlement Officer the D.S.O.-II conducted an enquiry on 8-1-1964. But, he too did not find any encroachment.

3. It is also the case of the petitioner that the then Chief Minister, who was an elected member from the constituency wherein the petitioner lives, thought that the petitioner did not cast his vote in the previous general election in his favour. So, the then Finance Minister ordered the Collector (the second respondent) to acquire the land of the petitioner for the purpose of village cattle path. Accordingly, the second respondent requested the Secretary (R. and M) of the Government of Manipur to make the necessary publication of notices in the Gazette. But, the secretary (R. and M.) asked the second respondent through his Memo No. 136/5/64-M dated 20-5-1964 to intimate him the circumstances, which warranted the absolute necessity to acquire the land of the petitioner. The second respondent sent a reply in his Memo No. 301/R/15/18 dated 5-6-1964 that the purpose was to provide for a cattle path. But, the secretary (R. and M,), Government of Manipur further asked the second respondent by his letter No. 136/5/64-M dated 18-6-1964 to state whether there was any other cattle path in the village. The second respondent, however, did not give any answer to that question. But he informed the Secretary (R. and M.) through his Memo 301/R/2056 dated 14-7-1964 that the question whether there was any other cattle path or not did not arise as the matter was initiated by the Finance Minister.

4. The petitioner further alleges in his petition that there has been a village cattle path from times immemorial to enable the villagers to take their cattle along it to graze in and near the village fishery. There are a number of houses around the petitioner's house and paddy fields. Another path could be acquired by the Government, if necessary, through some other lands shorter in length than the proposed cattle path, sought to be provided for through the petitioner's Dag Nos. 1031 and 1032. But, on account of malice and ill-will the petitioner was singled out. The Under Secretary (R and M), Government of Manipur issued a Notification as per Ext. A/3 No. 136/5/64-M dated 21-7-1964 under Section 4(1) of the Act stating that the land covered by Dag Nos. 1031 and 1032 - .30 and .03 acres in extent respectively was needed for public purposes.

Under the same notification the Chief Commissioner directed the Government servants concerned to enter upon the land under Section 4(2) of the Act to carry out the necessary work. Further, the Chief Commissioner stated in the Notification that he was of the opinion that the provisions of Section 17(1) of the Act were applicable and that, therefore, under Section 17(4) of the Act the provisions of Section 5 (A) would not apply. The Notification was published in Manipur Gazette Extraordinary No. 63-E-46 dated 25-7-1964.

5. It is then the case of the petitioner that the Under Secretary (R. and M.) had informed the second respondent through his letter dated 24-7-1964 that as the funds of the Government were exhausted, the government was not ready to bear the compensation and that the villagers should pay the expenses for the acquisition. Accordingly, the S.D.O. Bishenpur was asked to evaluate the land proposed to be acquired. After the S.D.O. Bishenpur valued it, the villagers de-posted a sum of Rs. 110.62 nP. towards compensation under the orders of the second respondent. The Secretary (R. and M.) of the Government of Manipur issued another Notification No. 136/5/64-M Dated 16-2-1965 as per Ext. A/4 declaring under Section 6 of the Act that the land in question was needed for public purposes and directed the Collector to take orders under section 7 of the Act. The second respondent directed the S.D.O. Bishenpur by his order dated 24-2-1965 to demarcate the land.

6. For the first time a notice was issued to the petitioner on 29-3-1965 under Section 9(3) and (4) of the Act as per Ext. A/6 Informing him that the land was required for laying the village cattle path. The petitioner was called upon to state on 20-4-1965 whether he had any interest in the land. As soon as he received the notice for the first time about the acquisition proceedings, he filed objections before the second respondent. But the second respondent dismissed the objections on 22-4-1965 as can be seen from Ext. A/7 on the ground that the provisions of section 5a were waived and that there was no scope for filing objections at that stage. The second respondent passed another order as per Ext. A/8 on 5-5-1965 directing the petitioner to deliver possession of the land to one N. Menjor Singh and others of the village.

7. So, the petitioner filed the present writ petition for declaration that the Notifications and the entire proceedings are void ab initio and made without jurisdiction.

8. The respondents filed a counter denying the allegations of the petitioner that the Government was actuated by malice or ill-will. But, they agree that the proceedings were made as detailed above. The petitioner filed his reply affidavit.

9. The points, which were argued, and which arise for determination, are :

(i) Whether the proceedings for the acquisition of the petitioner's land were illegal as being contrary to the provisions of Section 17 of the Act ?

(ii) Whether the proceedings taken by the respondents were illegal being contrary to the provisions of Section 6 of the Act ? and

(iii) Whether this Court has no jurisdiction to entertain the Writ petition ?

10. Point No. 1 - Part II of the Act lays down the procedure to be adopted by the Government in acquiring any land. Under Section 4(1) of the Act, if it appears to the appropriate government that the land in any locality is needed or that it is likely to be needed for any public purpose, then a preliminary notification to that effect should be published in the official gazette and the Collector should cause public notice of the substance of such notification given at a convenient place in the said locality, Under Sub-Section (2) of Section 4, it shall be, thereupon, lawful for any officer, either generally or specially authorised by such Government in this behalf and for his servants and workmen to enter upon the land and to do the necessary work.

Under Section 5A of the Act (which was inserted by the Central Act XXXVIII of 1923) any person interested in any land, which has been notified under S. 4(1), may within 30 days after the issue of the Notification object to the acquisition of the land before the Collector. Thereupon, the Collector should give the objector an opportunity of being either in person or by pleader. After hearing the objections and making any further enquiry, as he thinks necessary, he should submit the case for the decision of the appropriate Government together with the record of the proceedings and his report. The decision of the appropriate Government on the objections is final. If the appropriate Government is satisfied after considering the report, if any, made under section 5a, sub-section (2) that any particular land is needed for a public purpose or for a Company, then, it should make declaration under Section 6(1) of the Act to that effect under the signature of a Secretary to such a Government.

But as can be seen from the proviso to Section 6(1) of the Act, no such declaration should be made unless the compensation to be awarded for such a 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. The declaration shall be conclusive evidence that |he land is needed for a public purpose or for a company, as the case may be, and after making the declaration the appropriate Government may acquire the land according to the other provisions of the Act.

11. After such a declaration is made under S. 7 of the Act, the appropriate Government or some officer, authorised by the Government in this behalf, should direct the Collector to take an order for the acquisition of the land. Under Section 8 of the Act, the Collector should thereupon cause the land to be marked out and measured. He should get a plan of the same prepared. Then, under Section 9 of the Act the Collector should cause public notice to be given at convenient places, on or near the land to be taken, stating that the Government intends to take possession of the land and that claims to compensation for all interest in such land may be made to him. Under Section 10 the Collector has got the power to require and enforce the making of statements as to the names and interests of persons interested in the land.

12. Sections 11 to 15 lay down that the Collector should make an enquiry into the objections, if any, made by any interested person and into the respective interest" of the persons claiming the compensation and make an award. Under Section 12 the award made by the Collector is final and conclusive as between the Collector and the persons interested, subject to the other provisions of the Act.

13. Sections 16 and 17 of the Act lay down the powers of the Collector to take possession of the land. After the Collector has made an award under Section 11 of the Act, he may take possession of it under Section 16 of the Act and it shall thereupon vest absolutely in the Government free from all incumbrances. But, under Section 17 the appropriate Government has got special powers in a case of urgency. As the first point in dispute relates to Sub-Sections (1) and (4) of Section 17, they are extracted hereunder :-

"17(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned In Section 9, Sub-Section (1), take possession of any 'waste or arable land needed' for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances.

x x x x x x

(4) In the case of any land to which, in the opinion of the appropriate Government the provisions of Sub-Section (1) or Sub-Section (2) are applicable, the appropriate Government may direct that the provisions of section 5a shall not apply, and, if it does 50 direct, a declaration may be made under Section 6 in respect of the land at any time 'after the publication of the notification under Section 4, Sub-Section (1).'"

(The underlinings (here in ' ') are mine) Thus, in the case of urgency the Collector (under the direction of the appropriate Government) may take possession of any waste or arable land needed for public purposes or for a Company. Under Sub-Section (4) of Section 17, if the appropriate Government considers that the provisions of Sub-Section (1) or Sub-Section (2) are applicable, then it may direct that the provisions of section 5a shall not apply. In such a case a declaration has to be made under Section 6 in respect of the land at any time after the publication of the preliminary notification under Section 4, Sub-Section (1).

14. As such, three conditions are to be absolutely satisfied under Sub-Sections (1) and (4) of Section 17, if the Government wants to proceed under their provisions. Firstly, there must be urgency. Secondly, the land must be waste or arable. Thirdly, there must be a subsequent publication of the declaration dispensing with the provisions of section 5a of the Act, after the preliminary notification under Section 4(1) of the Act was made. But, in the present case, all these three provisions were violated by the Government. Firstly, the Government did not give any reason how a state of emergency or urgency arose for the acquisition of the cattle path through the land of the petitioner. The Secretary (R. and M.), Government of Manipur sent a letter No 136/5/64-M dated 18-6-1964 asking the second respondent to state whether there was any other cattle path in the village, other than that through the proposed land to be acquired. But, the second respondent did not give any answer to it. He simply stated that the proceedings were initiated by the then Finance Minister. Thus, an urgency was said to have arisen for the acquisition of the petitioner's land. This can be hardly said to be any valid reason for the alleged urgency.

The learned Government Advocate stated that there would have been a rioting, if the land was not acquired and that therefore there was urgency. But, the petitioner was found to have not trespassed into any land of others. Some other preventive steps should have been taken to avert rioting. Irregular acquisition of the petitioner's land is not a justifiable act to prevent alleged rioting.

15. The second requisite that the proceedings could be taken only when the land is either waste or arable land was also violated. According to the petitioner the land now to be acquired is his homestead and paddy land, on which his house is situate, vide para 1 of his petition. The respondents admitted in para 2 of their counter the correctness of the allegation of the petitioner made in para 1 of his petition. So, dag Nos. 1031 and 1032 sought to be acquired by the respondents constitute the homestead and the paddy land of the petitioner. The Government has no right to acquire any such land. It has got a right to acquire only waste or arable land under Section 17(1) of the Act in the case of urgency. Also, vide Mandeswar Prasad v. U.P. Government, AIR 1964 SC 1217.

In Sarju Prasad Saha v. State of U.P. AIR 1965 SC 1763 it was held that a Notification issued in exercise of powers under Sub-Section (4) of Section 17 declaring that the provisions of section 5a shall not apply to the acquisition of land, which was not a waste or arable land, for purposes mentioned in Sub-Section (1)(A) introduced by the U.P. Amending Act XXII of 1954 was invalid. It was further held that even if a part of the land was waste or arable it would not be open to the Court to regard the Notification as partly good and partly bad. Thus, the second requisite of law was also disregarded by the respondents.

16. The third requisite is that if the Government wants to dispense with the provisions of section 5a of the Act, then it has to make a declaration to that effect separately, after the publication of the preliminary notification under Section 4(1) of the Act. A perusal of Ext. A/3 (Notification) issued by the Government of Manipur in the Gazette Extraordinary 63-E-46, Imphal, dated 25-7-1964, shows that the Chief Commissioner (in whose name it was issued) disregarded the provisions of Section 17(4) of the Act. Ext. A/3 is a composite Notification, which contains the preliminary notification under Section 4(1) of the Act as well as the declaration under Section 17(4) of the Act dispensing with the application of Section 5A of the Act. The dispensation of the provisions of section 5a of the Act should have been made by a separate Notification and not by the same Notification.

17. Thus, the Government did not comply with the provisions of Sub-Sections (1) and (4) of Section 17 of the Act. Therefore, Ext. A/3 (Notification) is illegal and is liable to be set aside. Point No. 1 is found in the affirmative.

18. Point No. (ii) The appropriate Government can make a declaration under Section 6(1) of the Act that the land is required for a company or a public purpose only when the compensation to be awarded is to be paid by the company, or wholly or partly out of the public revenues or some fund controlled or managed by a local authority. The correspondence between the Under Secretary (R and M) and the second respondent shows that the Government did not want to acquire the land in question with the Government funds. The Under Secretary (R and M), Government of Manipur informed the second respondent by his letter dated 24-7-1964 that as the funds of the Government were exhausted, it was not ready to pay the compensation and the necessary expenses and that the villagers should be directed to bear the expenses for the acquisition of the land. So, the S.D.O./Bishenpur was asked to evaluate the land. After the S.D.O./Bishenpur submitted his report, the second respondent directed the villagers to deposit the compensation amount of Rs. 110. 62 nP. and the villagers accordingly deposited the same. So, the earlier portion of the proviso to Section 6(1) of the Act does not apply, as the compensation to be awarded was not made payable either wholly or partly out of public revenues.

Even the latter portion of the proviso that the compensation should be paid out of some fund controlled or managed by a local authority also does not apply. Section 3(31) of the General Clauses Act (Act X of 1897) defines local authority as a municipal committee, district board, body or Port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund. In Valjibhai Muljibhai v. State of Bombay, AIR 1963 SC 1890, the Bombay State Road Transport Corporation was held .to be not a local authority. Even so the body of villagers, who contributed the compensation amount cannot be said to be "local authority". As such, none of the conditions laid down by the proviso to Sub-Section (1) of Section 6 is applicable and the orders of the respondents acquiring the land amount to a colourable exercise of their powers and are not legally valid and supportable.

In Smt. Somawanti v. State of Punjab, AIR 1963 SC 151 it was held that the declaration under Section 6 of the Act that a particular land is needed for a public purpose or for a company is not to be made by the Government arbitrarily, but that it should be made on the basis of the material placed before it by the Collector and that Collusiveness or finality attached to the declaration of the Government is not only as regards the fact that the land is needed but also as regards the question that the purpose for which the land is needed is in fact a public purpose or what is said to be a company is really a company. It was also held that whether in a particular case the purpose for which the land is needed is a public purpose or not is for the State Government to be satisfied about, subject, however to one exception, viz., if there is a colourable exercise of powers the declaration will be open to challenge at the instance of the aggrieved party. It was further held that if 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 that the declaration would be a nulity.

In the present case also, the exercise of the right by the respondents in making the declaration under Section 6(1) of the Act is a colourable exercise of their right, since the proviso to Section 6(1) of the Act was not in fact complied with. Again, it has to be noted that the respondents made the declaration without finding out the funds by the Government. In Mrs. R.D. Chand v. State of Andhra Pradesh, AIR 1963 Andh Pra 383 it was held that it is clear from a perusal of the proviso to Sub-Section (1) of Section 6 of the Act that no declaration under it should be made unless the compensation to be awarded is to be paid wholly or partly out of the public revenues and that this means that the Government must decide even before issuing the notification under Section 6 to pay the compensation wholly or in part out of the public revenues.

In Mrs. Ambujam Menon v. State of Kerala, AIR 1966 Ker. 187, it was held that an order is vitiated by mala fides if it is passed by an authority without applying its mind at all, even though there is no evidence of any personal ill-will, corrupt motive or other improper purpose. In it was held that the State did not apply its mind to all the relevant facts when it made a declaration under Section 6 of the Act. As such, the proceedings of the respondents in this case also are vitiated.

19. The contention of the learned Government Advocate is that the mere fact that the cost of acquisition was met by the villagers would not necessarily invalidate the proceedings. He relied on K. Ramamurthi v. Special Deputy Collector, Harbour Acquisition, Vizagapatam, AIR 1927 Mad 114 it was held hi that case that it was not necessary that the declaration should on its face show that the acquisition was to be made out of the public revenue and that the proviso to Section 6(1) of the Act does not say so. In Samiruddin Sheikh v. Sub-Divisional Officer, AIR 1954 Assam 81 it was held that the mere fact that the estimated cost of acquisition of the land required for the construction of a village pathway was for the time being raised by the villagers would not necessarily invalidate the proceedings where the cost was deposited in the Government Treasury, presumably with the purpose that it would be controlled and managed by the local authority and not by the villagers themselves. It was further held that the actual cost of acquisition might be more than the amount deposited by the villagers and that it might be that the cost in excess of the deposit would have to be contributed from the public revenues and that, even if a small amount of the cost was so contributed, it would be a sufficient compliance with the proviso to Section 6(1) of the Act.

I do not agree that the deposit of the compensation amount by the villagers in the Treasury, to be paid to the petitioner, would stamp it as a public revenue. It is still an amount paid by the villagers through the Government and does not lose its identity as a private fund. The learned Government Advocate, however, argued that the final amount of compensation to be paid to the petitioner was not yet determined by the second respondent, that the Government would have to contribute some more amount and that, therefore, the proviso to Section 6(1) of the Act would be attracted. The petitioner stated in para 14 of his petition that the Under Secretary (R and M), Government of Manipur informed the second respondent that the funds of the Government were exhausted, that the Government was not ready to bear the compensation and that, therefore, the villagers should bear the same.

The petitioner further averred in para 14 of his writ petition that according to the estimate made by the S.D.O/Bishenpur, the villagers deposited the sum of Rs. 110-62 P. under the orders of the second respondent. The respondents did not deny the correctness of the above statements in para 9 of their counter, in which they dealt with the contentions raised by the petitioner in paras 14 to 18 of his writ petition. On the other hand, they stated that the averments in paras 14 to 18 are substantially correct. So, the entire compensation amount sought to be paid to the petitioner was only a sum of Rs. 110.62 nP. and it was deposited by the villagers. It is not now open to the respondents to state that they would make some contribution out of the public revenue, so that the declaration under Section 6(1) of the Act might not be illegal.

20. For the above reasons, I hold point (ii) in the affirmative.

21. Point No (iii) :- The contention of the learned Counsel for the respondents is that the Government is prima facie the best Judge to decide whether the land was required for any public purpose or not, that the declaration made under Section 6(1) of the Act that the land was required for a public purpose is conclusive evidence of the same under Section 6(3) of the Act, that the Court has no jurisdiction to examine the facts and the circumstances of the case leading to the notifications and that the notifications cannot be questioned by a writ. He relied on the following decisions in support of his contentions. In Hamabai Framjee v. Secretary of State, AIR 1914 PC 20 it was held that prima facie the Government is the good Judge, though not absolute Judge, of the question whether the purpose in the case is one in which the general interest of the community is concerned. In Gopalkrishna v. Secretary Board of Revenue Madras. AIR 1954 Mad 362, it was held that a declaration under Section 6 of the Act is conclusive evidence that the land is needed for a public purpose and that it cannot be challenged in a Court of law, unless there is a charge against the Government that it acted in fraud of its power. In I. Veerabhadrappa v. Union of India. AIR 1959 Punj 54 it was held that where a decision depends upon the facts and circumstances of a case, they are not open to scrutiny by the High Court in the proceedings under Article 226 of the Constitution of India. It was a case arising under the Mines and Minerals (Regulation and Developments Act of 1948).

In Srinivasa Jagannadha Rao v. State of Andhra Pradesh. AIR 1960 Andh Pra 343 it was held that when the land acquisition proceedings under Section 6(1) of the Act are challenged by a petition under Article 226, the only question for consideration is whether the land was required for a public purpose and that, when once a declaration was made by the Government to that effect it would be conclusive evidence under Section 6(3) of the Act and could not be challenged in a civil Court. It was also held that when the land acquisition proceedings are attacked by a petition under Article 226 on the ground of mala fides, the Court is concerned only with the conduct of the Government which is the acquiring authority and that the motives of the persons who urged the Government to start the proceedings under the Land Acquisition Act are not quite relevant in Babu Barkya Thakur v. State of Bombay, AIR 1960 SC 1203 the scheme of the Act with reference to Sections 4, 5A and 6 of the Act was discussed.

22. In the present case the facts show that the allegation of the villagers that the petitioner encroached into some immemorial and ancient cattle path in the village was found to be false. The villagers pursued the matter and filed a petition before the Chief Minister. The second respondent refused to state whether there is already an ancient cattle path or not on the ground that the matter was urgent, because the then Finance Minister was particular for a way being laid out. The petitioner was deprived of an opportunity to state his objections under Section 5A of the Act. For the first time he was made aware of the proceedings under Section 9(1) of the Act. The objection raised by him to the acquisition of the land was thrown out as belated and is not maintainable under Section 9 of the Act. These facts show that the respondents were actuated by ulterior motives.

The learned Government Advocate argued that the impugned Notifications in question were issued by the Chief Commissioner and not by the Ministers and that the allegations made by the petitioner against the Ministers are baseless. In this territory, administered by the Central Government, all the orders of the Ministers in their public capacity are issued only in the name of the Chief Commissioner. It does not appear that the Chief Commissioner applied his mind before issuing the various Notifications. The correspondence shows that the Under Secretary and the second respondent acted under, the instructions of the Ministers. Compulsory acquisition of a land can be effected only in accordance with the law of acquisition, because, it is an inroad into a citizen's right to own property. Such inroad can be made only in strict compliance with the law authorising it. But, if the Government purports to exercise its right, which is a colourable one its order is liable to be set aside by an appropriate writ of the High Court.

The theory of finality was negatived by the Supreme Court in State of West Bengal v. P.N. Talukdar. AIR 1965 SC 646. It was held that the presumption contained in Section 6(3) of the Act that the declaration in the Notification shall be conclusive evidence that the land was needed for a public purpose or for a company, as the case may be, does not mean that the Court is precluded from enquiring whether the Notification that the land was needed for a public purpose was made in fraud of the Act, viz., against the proviso to Section 6(1), which requires that such Notification could not be made unless part or whole of the compensation came out of the public revenues or some fund managed or controlled by the local authority. Vide also Gadadher Ghose v. State of W. Bengal, AIR 1963 Cal 565. So the Court has jurisdiction to find whether Ext. A/3 (Notification) and other notifications were made in fraud of the proviso to Section 6(1) of the Act.

23. The learned Government Advocate further contended that the decision of the Government under Section 4 read with Section 6 of the Act is only an administrative act and that there is no scope for any application for a writ of certiorari. He relied on Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 wherein it was held that the decision of the Provincial Government about a public purpose is an administrative act and that there is no scope for an application for a writ of certiorari. But, no property of a citizen can be taken away except under authority of law as envisaged by Article 31 of the Constitution, and in view of the latest decision of the Supreme Court in AIR 1965 SC 646 already referred to, the present Writ petition lies, since the respondents violated the various provisions of law contained in Sections 6 and 17 of the Act under a colourable exercise of their right to acquire the land of the petitioner by compulsory acquisition.

24. For the above reasons I find on point (iii) that the Writ petition lies.

25. In the result, the petition is allowed with costs and the various Notifications and orders issued by the respondents regarding the land in question are hereby quashed. Pleader's fee Rs. 100.

Petition allowed.

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