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Varkey Devassy v. State Of Kerala & Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The petitioner sought a writ of certiorari (or other appropriate writ) to call up and scrutinise the records of Ext. P-1 (a notification), Ext. P-2 and Ext. P-6 (a notice) and to quash the land acquisition proceedings against the petitioner's property described as 42 cents in Sy. No. 1325/8 of Maradu village, Kanayannur taluk, Ernakulam district.
The respondents were: the State of Kerala (1st respondent), the Revenue Divisional Officer, Fort Cochin (2nd respondent), and the General Secretary, Nettur Dharmaprasobhini Sabha (additional 3rd respondent). Ext. P-1 was a notification issued under s. 3(1) of the Cochin Land Acquisition Act, II of 1070 (noted as being very similar to s. 3 of the Kerala Land Acquisition Act, 1961) declaring that the land was likely to be needed "for the Nettur Dharmaprasobhini Sabha for a temple compound" and authorising the Revenue Divisional Officer to exercise powers under s. 3(2).
The counter-affidavit alleged that no objections were filed under s. 4 of Act II of 1070, and a declaration under s. 6 was made on 21 January 1964. A subsequent notice (Ext. P-6) was issued under s. 9(3) of the Kerala Land Acquisition Act, 1961. The Kerala Act came into force on 14-1-1963, replacing Act II of 1070, and the declaration was made after that date under s. 6 of the Kerala Act, 1961.
Legal Issues Presented
- Whether acquisition of land "for a temple" constitutes an acquisition for a public purpose within the meaning of the Constitution (Art. 31(2) referenced) and the Land Acquisition Act.
- Whether an acquisition can be characterised as for a public purpose when the entire compensation is to be paid by a private body (here, the Nettur Dharmaprasobhini Sabha), i.e., whether use of public revenue or local authority funds is necessary.
- Whether, because the notification named a registered society (the Sabha), the acquisition must be treated as an acquisition for a company and hence Part VII of the Kerala Land Acquisition Act, 1961 (including a prior written agreement before enquiry under s. 5 and compliance with the limited purposes in s. 43(1)) must be followed.
- Whether there was any mala fide exercise of power in initiating or conducting the acquisition proceedings.
Arguments of the Parties
Petitioner's Arguments
- The acquisition for a temple is not an acquisition for a public purpose as envisaged by Art. 31(2) of the Constitution and s. 3 of the Land Acquisition Act, 1961.
- Because the entire amount for acquisition is to be paid by the third respondent (the Sabha), the acquisition cannot be for a public purpose; at least some part of the compensation must come from public revenue or funds controlled/managed by a local authority.
- Alternatively, since Ext. P-1 refers to the Nettur Dharmaprasobhini Sabha (a registered society), the acquisition should be treated as for a company and therefore Part VII of the Land Acquisition Act, 1961 must be complied with — including a written agreement executed before any enquiry under s. 5 and limiting acquisitions to the purposes listed in s. 43(1).
Respondents' (State's) Position
- The acquisition is for a public purpose — specifically for a temple compound which can be used by the public (here described as usable by all Hindus).
- The reference to the Nettur Dharmaprasobhini Sabha in the notification and declaration relates to that body's agreement to pay compensation; the acquisition is not for a company and therefore Part VII does not apply.
- There is no mala fide in the exercise of powers to acquire the land.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt. Somawanti and others v. State of Punjab, AIR 1963 S.C. 151 | Used to support the proposition that the question whether there is a public purpose is not justiciable. | The court treated this decision as covering non-justiciability of the question of public purpose and applied it to hold that the government's satisfaction as to public purpose (leading to declaration under s. 6) is final and not open to challenge. |
| Babu Barkya Thakur v. State of Bombay (now Maharashtra) & others, AIR 1960 S.C. 1203 | Cited by petitioner to argue that acquisition is not for a public purpose when compensation is furnished entirely by a private body (relying on the proviso to s. 6(1) of the 1894 Act). | The court noted the citation but held that the decision was based on provisions of the Land Acquisition Act, 1894 (specifically the proviso to s. 6(1)) and did not establish a general principle applicable under the Kerala Act, 1961; therefore it was not decisive here. |
| R. L. Arora v. State of U.P. & others, AIR 1962 S.C. 764 | Also cited to support the funding/public-revenue point under the 1894 Act framework. | The court observed that this decision was founded on the 1894 Act's provisions and therefore did not supply a general rule preventing acquisition for public purpose where public revenues are not used; it was not applied to invalidate the acquisition under the Kerala Act, 1961. |
| State of West Bengal & others v. P. N. Lalukdar & others, AIR 1965 S.C. 646 | Cited by petitioner among decisions supporting the proposition concerning funding and public purpose under the 1894 Act. | The court treated this and similar decisions as decisions under the 1894 Act and concluded they do not lay down the general principle argued for by the petitioner in the context of the Kerala Act, 1961. |
| Pandit Jhandu Lal & others v. The State of Punjab & another, AIR 1961 S.C. 343 | Cited in the context of the argument that acquisition is not for a public purpose if public revenue is not used (relied upon the 1894 Act). | The court did not accept that this line of decisions established a universal rule; it distinguished the present matter as being under the Kerala Act, 1961 which lacks the proviso relied upon in those 1894 Act decisions. |
| Shyam Behari & others v. The State of Madhya Pradesh & others, AIR 1965 S.C. 427 | Cited by petitioner among cases concerning acquisition funding and public purpose (1894 Act context). | The court held the decision did not mandate the petitioner's conclusion in the present case because it proceeded from the 1894 Act's specific proviso and the Kerala Act, 1961 contains no corresponding provision; thus it was not applied to invalidate the acquisition. |
Court's Reasoning and Analysis
The court proceeded in a stepwise manner, applying statutory provisions and constitutional text as they appeared in the record:
- On the question whether acquisition for a temple is a public purpose, the court considered Article 27 of the Constitution (quoted in the opinion). It observed that Article 27 prohibits compelling any person to pay taxes the proceeds of which are specifically appropriated for the promotion or maintenance of a particular religion, but the article does not preclude the use of general revenues for religious purposes. The court concluded that Article 27 does not decide whether acquisition for a temple is a public purpose.
- The court explained its view that if a section of the general public is benefited by an acquisition, the purpose is a public purpose. Public temples serve the general public; therefore acquisition for the establishment of a temple, church or mosque must normally be for a public purpose. The petitioner had not cited any authority directly ruling that acquisition for a temple cannot be a public purpose; the court rejected that contention.
- The court held that the question of whether there is a public purpose is not justiciable (i.e., the government's satisfaction on public purpose is final). It relied on the decision in Smt. Somawanti v. State of Punjab to support the proposition that the determination of public purpose (as part of the declaration process) is final. The court further pointed to the procedural provisions in the Kerala Land Acquisition Act, 1961 (notably s. 5 dealing with hearing objections where the government's or board's decision "shall be final") to underline the finality of the executive decision.
- Regarding the argument that the acquisition is not a public purpose because compensation would be paid entirely by the Nettur Dharmaprasobhini Sabha (supported by an agreement, Ext. R-7), the court analysed the provenance of that contention: the petitioner relied on the proviso to s. 6(1) of the Land Acquisition Act, 1894 and several Supreme Court decisions decided under the 1894 Act. The court found that the Kerala Land Acquisition Act, 1961 contains no corresponding proviso and therefore the 1894 Act authorities do not establish a general principle that public funds must be used for an acquisition to be a public purpose.
- The court emphasised that utilisation of public revenue may indicate public purpose but is not a necessary condition; the decisive factor is whether the public benefit results from the acquisition. The fact that the government required the community to pay costs was viewed as a policy choice rather than proof that the acquisition is not for a public purpose.
- On the contention that Part VII should apply because the acquisition was "for" a registered society (and thus akin to acquisition for a company), the court accepted the state's explanation that the reference to the Nettur Dharmaprasobhini Sabha was because it agreed to pay compensation. The substantive purpose, the court found, was for a temple compound (a public purpose). Therefore the acquisition was not for a company and Part VII did not apply. Consequently, the existence of Ext. R-7 (the agreement) prior to completion of enquiry under s. 5 did not render the acquisition invalid.
- The court found no substance in the suggestion of mala fide exercise of power.
Holding and Implications
Holding: The court DISMISSED the writ application.
Direct consequences for the parties:
- The petitioner’s challenge to the acquisition proceedings was unsuccessful; the court did not quash the acquisition notifications, declaration or subsequent notices.
- The court expressly found no mala fide exercise of power.
- The court made no order as to costs.
Broader implications: The opinion does not discuss broader implications at length. The court applied existing statutory procedures (including the finality of the government's or board's decision under the Kerala Land Acquisition Act, 1961) and distinguished earlier Supreme Court authorities decided under the Land Acquisition Act, 1894. No new legal principle or precedent was announced beyond the application of these provisions to the facts of this case.
1. The prayer in this writ application is
"to issue a writ of certiorari or such other appropriate writ, Order or direction to the respondents in order to call up the records and proceedings of ext. P - 1 notification issued by the 1st respondent, Ext. P - 2 and p - 6 notice issued by the 2nd respondent to scrutinise the same and quash the entire land acquisition proceedings taken against the petitioner's property, 42 cents in sy. No. 1325/8 of maradu village, Kanayannur taluk, Ernakulam district."
2. The first respondent to this writ application is the state of kerala. The second respondent is the revenue divisional officer, Fort cochin and the additional third respondent is the general secretary, Nettur dharmaprasobhini sabha. Ext. P - 1 notification was issued under s. 3 (1) of the land acquisition act, Ii of 1070 which was applicable to the cochin area. It is unnecessary to read s. 3 (1). It is very similar to s. 3 of the kerala land acquisition act, 1961. Ext. P - 1 notification stated:
"whereas it appears to the government of kerala that the land specified below is likely to be needed for a public purpose to wit. For the neltur dharmaprasobhini sabha for a temple compound notice to that effect is hereby given to all whom it may concern in accordance with the provisions of s. 3 (1) of the cochin land acquisition act, Ii of 1070. The government hereby authorise the revenue divisional officer, Fort cochin, His staff and workmen to exercise the powers conferred by s. 3 (2) of the said act."
3. It is alleged in the counter affidavit that no objections were raised to the above notification within the time prescribed by s. 4 of act ii of 1070. Therefore a declaration was made under s. 6 on 21st january, 1964. Thereafter a notice ext. P - 6 was issued under s. 9 (3) of the kerala land acquisition act, 1961. It may be mentioned here that the kerala land acquisition act came into force on 141963 replacing act ii of 1070 and this was before the declaration was made. The declaration was made under s. 6 of the kerala land acquisition act, 1961.
4. (i) counsel on behalf of the petitioner has contended that the acquisition for a temple is not an acquisition for a public purpose as envisaged by art. 31 (2) of the constitution and not within the meaning of that term in s. 3 of the land acquisition act, 1961.
(ii) it is also urged that since the entire amount for the acquisition is to be paid by the third respondent, The acquisition cannot be said to be for a public purpose. The contention is that in order that the acquisition may be for a public purpose at least a part of the amount must be from public revenues or some fund controlled or managed by a local authority.
(iii) alternatively it is urged that since it is mentioned in ext. P - 1 "for the nettur dharmaprasobhini sabha" which is a registered society it may be taken that the acquisition is for a company. This, It is admitted, Is possible under the land acquisition act, 1961. But it is urged that in order that the acquisition may be made for a company, The procedure provided in part vii of the land acquisition act must be followed and there must be a written agreement executed before any enquiry under s. 5 is undertaken and further any acquisition under that part can be only for one of the purposes mentioned in s. 43 (1) thus:
"43. (1) previous enquiry (1) such consent shall not be given unless the government be satisfied, Either on the report of the collector under sub - section (2) of s. 5 or by an enquiry held as hereinafter provided,
(a) that the purpose of the acquisition is to obtain land for the erection of the dwelling - houses for workmen employed by the company or for the provision of amenities directly connected therewith, Or
(b) that such acquisition is needed for the construction of some work, And that such work is likely to prove useful to the public, Or
(c) that such acquisition is needed for a purpose calculated to promote and develop agriculture, Industry or co - operation. "
and the purpose here is not one such. So the acquisition even treated as for a company is bad.
5. In support of the first contention that the acquisition for a temple is not an acquisition for a public purpose, It is urged that art. 27 of the constitution which is in these terms:
"27. No person shall be compelled to pay any taxes, The proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination."
itself gives an indication that the state should not promote or provide facilities for the religious worship of a particular class. The argument is that the constitution envisages a secular state and the state machinery cannot be utilised for the purpose of promoting one religion. The matter is certainly not free from difficulty. But a secular state does not mean that no religion should be allowed to flourish in the state or that no support should be given by the state in any manner for the development of any particular religion. On the other hand, It seems to me that facility must be afforded to all the religions to develop in a secular state. No doubt by virtue of art. 27 of the constitution which i have read no person shall be compelled to pay any taxes, The proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion. This restriction on the wording of the article only applies to compulsion to pay any taxes, The proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. This article of the constitution does not preclude the application of the general revenues of the state in payment of expenses for the promotion or maintenance of any particular religion. In fact, It appears to me that the article implies that the general revenues may be utilised for such purposes. Whatever that be, This article of the constitution can have no application in determining the question as to whether the acquisition of land for a temple can be said to be an acquisition for a public purpose. If a section of the general public is benefitted by the acquisition the purpose must be a public purpose. Public temples are meant to serve the general public. So the acquisition for the establishment of a temple or a church or a mosque must normally be for a public purpose. Counsel on behalf of the petitioner has not referred me to any decision where it has been ruled that acquisition for the temple cannot be acquisition for a public purpose. I therefore negative this contention.
6. I am also of the view that the question whether there is a public purpose or not is not justiciable. The matter is covered by the decision in smt. Somawanti and others v. State of punjab reported in air. 1963 s. C. 151. The contention of counsel for the petitioner that the case cannot apply as it is based on the proviso to s. 6 (1) of the land acquisition act, 1894, Cannot stand. There is a similar provision in the land acquisition act, 1961 in s. 5 reading as under:
"5. Hearing of objections. (1) any person interested in any land which has been notified under sub - section (1) of s. 3 as being needed or likely to be needed for a public purpose may, Within thirty days after the issue of the notification, Object to the acquisition of the land or of any land in the locality, As the case may be.
(2) every objection under sub - section (1) shall be made to the collector in writing and the collector shall give the objector an opportunity of being heard either in person or by counsel and shall, After hearing all such objections and after making such further enquiry, If any, As he thinks necessary, Submit the case,
(i) where the preliminary notification under sub - section (1) of s. 3 was published by the government, To the government;
(ii) where the preliminary notification under sub - section (1) of s. 3 was published by himself, To the board of revenue; for the decision of the government or the board of revenue, As the case may be, Together with the record of the proceedings held by him and a report containing his recommendations on the objections.
the decision of the government or the board of revenue, As the case may be, Shall be final.
declaration under s. 6 can and will be issued only when the government is satisfied that the purpose is a public service. This conclusion is final and cannot be challenged. For this reason also the first contention must fail.
7. Counsel for the petitioner also referred to ext. R - 7 an agreement entered into by the government with the dharma prasobhini sabha and urged that the entire compensation payable for the acquisition is to come from the sabha referred to and therefore the acquisition cannot be an acquisition for a public purpose. The argument is that in order that an acquisition may be for a public purpose the compensation payable for such acquisition must wholly or partly be out of the public revenues or some fund controlled or managed by a local authority. This argument is based on the proviso to s. 6 (1) of the land acquisition act, 1894. That proviso is in these terms:
"provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, Or wholly or partly out of public revenue or some fund controlled or managed by a local authority."
counsel referred to a number of decisions of the supreme court such as babu barkya thakur v. State of bombay (now maharashtra) and others reported in air. 1960 s. C. 1203, R. L. Arora v. The state of uttar pradesh and others reported in air. 1962 s. C. 764, State of west bengal and others v. P. N. Lalukdar and others reported in air. 1965 s. C. 646, Pandit jhandu lal and others v. The state of punjab & another reported in air. 1961 s. C. 343 and shyam behari & others v. The state of madhya pradesh & others reported in air. 1965 s. C. 427 and urged that the acquisition in this case is not for a public purpose because the entire fund is to be furnished by the nettur dharmaprasobhini sabha. 1 do not think that the argument is sound. The proviso to s. 6 (1) of the land acquisition act, 1894 can have no application. The acquisition in this case is under the kerala land acquisition acts, 1961. There is no provision in the latter act corresponding to the proviso to s. 6 (1) extracted above of the land acquisition act, 1894. The decisions of the supreme court referred to, I think, Are based on the provisions of the land acquisition act, 1894. They did not lay down any general principle that there can be no acquisition for a public purpose unless the public revenues of the state are utilised for the acquisition. The fact that public revenue has been utilised for an acquisition may indicate that the purpose is a public purpose. But it cannot be said that when public revenues have not been utilised the acquisition is not for any public purpose. The question as to whether the acquisition is for a public purpose must depend largely on other considerations such as whether the public are benefitted by such acquisition. Persons interested in promoting or maintaining any particular religion may make funds available for the purpose of acquiring land for a temple. The fact that the government have insisted that community should pay the costs is perhaps based on a good principle that public revenues should not be diverted for one class of religion. I am therefore unable to infer from the mere fact that public revenue has not been utilised that the acquisition is not for a public purpose.
8. Coming to the last contention that there has been no compliance with part vii of the kerala land acquisition act, 1961, The answer of counsel on behalf of the state is based on para. 3 of the counter - affidavit reading as under:
"i submit that the acquisition in this case is for a public purpose. Though the acquisition is for a temple of a particular hindu community, It can be used as a place of worship by all hindus."
the case is that the acquisition is for a public purpose and not for a company. This contention does not seem to be against the notification ext. P - 1 or the declaration under s. 6. The name of the nettur
dharmaprasobhini sabha is apparently referred to in the notification and the declaration because they have agreed to pay the compensation. But it is also mentioned that the acquisition is for a temple compound. And the facts are clear and it is not disputed that the acquisition is for temple purposes. This i have held earlier, Is a public purpose. So i am unable to accept the contention that the acquisition is for a company. It follows that part vii of the kerala land acquisition act, 1961 cannot apply. There is therefore nothing wrong in having concluded an agreement ext. R - 7 before the enquiry under s. 5 was completed. The acquisition need not also be exclusively for one of the purposes mentioned in s. 4. This argument must also fail.
9. There is no substance in the suggestion made by counsel that there has been any mala fide exercise of power.
in the result, This writ application is dismissed. I make no order as to costs. Dismissed.
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