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Judgment
Jayasimha Babu, J.—The owner of the properly measuring 1 ground and 1884 sq. ft. bearing door No. 34, Sembudoss Street comprised in
S. No. 5358 in V.O.C. Nagar, George Town, - Tondiarpet Taluk, Madras-1 is the petitioner herein. The relief sought for in this petition is to
quash the land acquisition proceedings in respect of the said property which was initiated by the notification under S. 4 (1) of the Land Acquisition
Act (hereinafter referred to as the Act) published in the Government Gazette dated 3.10.1962. The acquisition was initiated pursuant to the
resolution of the Corporation of the City of Madras dated 24.10.1961 to acquire the properly for housing the corporation school at this premises
by relocating the school that was being run on the same street in a leased building at No. 20, Sembudoss Street. The Notification under Sec. 6 was
published on 6.1.1963. While the Award enquiry was in progress, one of the tenants of the said property S.S. Nathan filed writ petition No.
866/84 challenging the acquisition. That challenge proved unsuccessful and that writ petition was dismissed on 17.4.1967. Writ Appeal No.
192/67 filed against that order also came to be dismissed.
After the disposal of the Writ appeal 192/77 an award under Sec. 12(2) of the Act came to be made on 20.10.1973 and the same was duly
served on the owners on 7.11.1973. Before the authorities could lake possession, one Meeran Sahib, a Sub tenant filed W.P. 5950/73 challenging
the acquisition proceedings. That petition was dismissed on 13.11.1973, as withdrawn. After these unsuccessful attempts by the tenant and sub
tenant, one P.I. Krishnaswami filed W.P. 6749/73, contending that the school ought not be located in this premises, as according to him, this
premises was unsuitable for running a school. That petition met the same fate as the earlier petitions, and was dismissed on 4.3.1977.
The owners of the property who had fill this lime not challenged the acquisition proceedings now entered the field, undeterred by the dismissal of
the earlier petitions challenging the acquisition. W.P. 23078/79 was filed by the present petitioner to forbear the respondents from acquiring this
property, fifteen years after the S. 6 Notification. The principal ground urged in that petition was that king subsequent to the Notification under
Sec. 6 of the Act, the then Commissioner of Corporation of Madras, in the year 1978 had opined that this premises was not an ideal one for
locating the school. That writ petition was allowed to a limited extent by this Court on 23.8.1984 directing the Government to apply its mind to the
report of the then Commissioner of Corporation of Madras dated 28.10.1978 wherein the Commissioner had opined that he Government may
withdraw from the acquisition proceedings, as in the view of the Commissioner, on account of the building being located in highly congested area
wherein there was heavy traffic, it was not desirable to locale a school at this premises as it would adversely affect the safely of the children and
effective functioning of the school. The Court however took care to note that under S. 48 of the Act, the person interested in the land cannot be
said to have a right to insist for the withdrawal of the acquisition proceedings by the Government.
The Government thereafter issued endorsement to the petitioner on 23.8.1984 as follows:
I am directed to invite your attention to your petitions first cited and to state that the Government have examined the Judgment of the High Court of
Madras in W.P. No. 2307/1979 to reconsider the question of withdrawal from the acquisition proceedings of premises bearing R.S. No. 5358 of
George Town, Corresponding to 34, Sembudoss Street, Madras, in the light of the recommendations given by the Commissioner Corporation of
Madras dated 28.10.1978 and they have decided that there is no reason to comply with the request of the Commissioner, Corporation of Madras
to withdraw the above premises from acquisition proceedings. I am directed to request you to hand over possession of the abovesaid premises to
the Land Acquisition Officer immediately.
This Writ petition - the fifth in the series of petitions challenging the acquisition came to be filed after the issue of this endorsement.
The files relating to the acquisition were produced by the learned Government Pleader when the case was taken up for hearing. Though the
endorsement extracted above, does not set out the reasons for the decision not to withdraw from the acquisition, I find from a perusal of the files
that the Government as also the Corporation of Madras which is now functioning under a Special Officer after the suppression of the elected
Body, have, in fact, re-examined the question of suitability of the premises for running the school with considerable care. The Special Officer, who
now exercises the Powers of the Council of the Corporation, has recorded the following resolution on 1.4.1982.
Inspected the site along with the C.E., F.O. and Engineer. I am convinced that this place is suitable for running a school. Since the entire area is a
business area, it will not be possible to select a better place for running a school in the area. It is also nearer to the police lines, which have sprung
up recently and it will be useful for the children of the policemen also to have the school nearby.
I also understand that due to the shifting of the school from Sembudoss Street to Linghi Chatty Street, the strength of the school has come down to
200 from 800. Even the said 200 is supposed to be the strength of two schools put together.
Under the circumstances mentioned above, it is resolved to act as per the original resolution of the Council to acquire the land and buildings
thereon.
Further elaboration of the reasons for deciding not to withdraw from the acquisition is made in the counter affidavit of the Special Deputy
Collector for Land Acquisition, wherein it is stated: ""I submit that there is already a school functioning in the same street in door No. 20, the
structures of which are not in a good condition. There will not be any difficulty in shifting the school to the acquired property (door No. 34 in the
same street) which is situated just few yards from the present school. No difficulty is experienced by the school, as slated by the petitioner from the
traffic point of view and no untoward incident was reported due to the location of the school in the street. The request of the petitioner to the
Government for the withdrawal of the land acquisition proceedings even after the award was passed was not considered as the interest of the
public at large was involved, and as the school is necessary to cater the needs of the children in this area."" The petitioner has magnified the things to
thwart land acquisition proceedings in the interest of the commercial community in the locality than in the interest of the public at large. The
acquisition in this case was interrupted by way of successive writ petitions from the dale of publication of 4 (1) Notification. The object ions of the
petitioner and other interested persons were examined and overruled at the time of publication of draft Declaration under Sec. 6 of the Land
Acquisition Act.
Thus, it is clear that although the Commissioner, Corporation of Madras, in his report dated 21.10.1978, submitted fifteen years after the
Section 6 Notification was published, had recommended that the Government may withdraw from the acquisition proceedings, as in his view, the
street being a narrow one with heavy traffic with large number of business establishments located therein and goods being loaded and unloaded in
the street throughout the day, in the interest of the safely of the children and their efficient studies, it was preferable to locate the school elsewhere,
the resolution dated 1.4.82 of the Special Officer, Corporation of Madras, in whom the powers of the Corporation Council are now vested would
show that on account of the no availability of a better place for running a school in the area and the imperative need to provide a school in the area
to meet the needs of the children in that area, it is necessary to proceed with the acquisition and to act in accordance with the resolution of the
Council dated 24.10.1961 to acquire this premises for running the school. It is also relevant to note here that even the Commissioner in the very
report given in 1978, and relied on by the petitioners, has observed that the building of the petitioner, with minor alienations, can be used as a
school. The following observations on the suitability of the building are made in his report.
It may he mentioned in this connection that almost all the buildings in the area are old because the area itself forms part of the earliest settlement of
Madras. But then it has also to be observed that all the buildings are solid and sturdy. Age has not weakened them in any manner. I could not find
anything wrong with the structural soundness of the building. Before using it as a school however some minor alterations will have to be made.
That, by itself, may not pose a problem.
Smt. Malini Ganesh, Learned Counsel for the petitioners, however, contended that under Sec. 48 of the Act, the Government had a duty to
exercise the power to withdraw from acquisition proceedings when the purpose for which the acquisition was proposed, could not be fulfilled and
failure to withdraw in such circumstances would render the entire acquisition proceedings invalid. It was her submission that the Government ought
to have accepted and acted upon the report of the Commissioner, Corporation of Madras dated 24.10.78 even though a Notification under Sec. 6
of the Act had been published in the year 1963, after considering the objections to the proposed acquisition including the objection as to the
purpose for which the property was being acquired. It was further submitted that notwithstanding the fact of dismissal of the Writ Petitions filed by
the tenants sub tenants and owners challenging that acquisition the recommendation for withdrawal of the acquisition proceedings having been
made by the Commissioner, Corporation of Madras and the acquisition proceedings being for the benefit of the Corporation, the Government
should be directed to exercise the power of withdrawal of the acquisition proceedings under Sec. 48 of the Act in respect of the petitioner''s
property.
Mr. Raghupathy, Learned Government Pleader, appearing for the respondents submitted that the present petition is wholly lacking in bona fides
and is but yet another attempt on the part of the owner to somehow obstruct the acquisition after the earlier attempts made by the tenants,
subtenants and owners had failed. It was submitted that when this Court had already dismissed the Writ Petitions of the tenants challenging the
validity of the acquisition proceedings, it was not legally permissible to embark on an investigation as to whether the suit property was suitable for
being used for the slated purpose of locating a school. It was further contended that land owner cannot be permitted to question the legality of the
acquisition proceedings at this distance of time this petition having been filed twenty one years after the S. 6 Notification and therefore this Writ
petition should be dismissed on the ground of laches.
As regards Section 48 of the Act, the submission for the respondents was that this Section vested unilateral power on the state to with draw
from the acquisition proceedings and that the Government cannot be compelled to withdraw from the proceedings. In any event, as the property is
still required for the very purpose for which it was notified for acquisition, the question of with drawing from the acquisition does not arise.
10-A. In support of her submissions, counsel for petitioner Smt. Malini Ganesh invited my attention to the decision of the Supreme Court in the
case of Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, wherein the Court held that the power conferred on the
authorities under the Land Acquisition Act is required to be exercised reasonably and in good faith so as to effectuate the purpose for which power
was conferred. Reliance was placed on the following observations of the Court:
Where the power is conferred to achieve a purpose, the power must be exercised reasonably and in good faith to effectuate the purpose. And in
this context, ''in good faith'' means for legitimate reasons. Where power is exercised for extraneous or irrelevant considerations or reasons, it is
unquestionably a colorable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be
exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous irrelevant or non-germane
consideration, the acquiring authority can be charged with legal mala fides. In such a situation there is no question of any personal ill- will or motive.
Counsel also relied on the observations of the Supreme Court in the case of State of Punjab and Another Vs. Gurdial Singh and Others,
The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous
considerations, good or bad, but irrelevant to the entrustment. When the custodian of the power is influenced in its exercise by considerations
outside those for promotion of which the power is vested the Court calls it a colorable exercise and is undeceived by illusion.
In the instant case, however, there is no basis for holding that decision to continue the acquisition is mala fide one and is actuated by
consideration which are not germane to the exercise of the power to compulsorily acquire property for a public purpose. The views expressed by
the then Commissioner, Corporation of Madras, fifteen years after the issue of final Notification for acquisition, that this location was not well
suited for a school docs not render the acquisition invalid or mala fide. The Special Officer of the Corporation of Madras in whom the powers of
the Corporation Council are vested has, after personally visiting the spot in 1982 recorded that in his views the place is suitable for running a
school and has resolved to act in accordance with the original 1961 resolution of the Corporation Council to acquire the property for locating the
school. The Special Officer has also noted that since the entire area is a business area it will not be possible to select a better place for running a
school in the area. The Government in its counter has also reaffirmed that the school is necessary to cater to the needs of the children in that locality
and that the petitioner''s properly is still required for the purpose of the school.
In urban areas especially in the older part of large cities, congested and narrow roads with heavy traffic is a common feature. It is an equally
common feature that large number of residents inhabit such areas in dwelling of smaller distension in the near or upper floors of the building used
for commercial purposes. Children who live, in such areas must necessarily have the opportunity to receive education by being able to attend the
schools located in the area. Though a busy commercial area is not the ideal location for a school, nevertheless, it is necessary to run schools such
areas also for the benefit of the children living in such areas. The decision of the Government not to withdraw from the acquisition proceedings for
the acquisition of the building in which it is proposed to locate a school, therefore, cannot be said to be a mala fide or colourable exercise of
power.
The petitioner''s contention that S. 48 confers a right on the owner or other persons interested in the property to compel the Government to
withdraw from the acquisition is wholly misconceived. Section 48 of the Act read thus:
Completion of acquisition not compulsory, but compensation to be awarded when not completed.- (1) Except in the arse provided for in Sec.
36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession had not been taken.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due far the damage
suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person, interest, together
with alt costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section.
The Section is intended to protect the Government from being burdened with properly which government considers as being no longer
required by it, and having to pay the compensation for such unwanted land. The Section is not intended to give to the owner and others interested
in the property yet another opportunity to challenge the acquisition proceedings. After the publication of the Declaration under S. 6, as provided in
Sub-sec. (3) of that Section ""The said Declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as
the case may be, and, after making such Declaration, the appropriate Government, may acquire the land in the manner hereafter appearing.
Public purpose is the justification for compulsory acquisition, as is evident from the Preamble to the Statute. The Declaration made under S. 6
constitutes conclusive evidence of the existence of such public purpose, if the declaration has been made in accordance with and after fully
complying with the requirements of the statute. While it is open to the persons affected to challenge such a Notification under Art. 226, the Act
does not confer any further right, after such Declaration has been made, on the persons interested, to prevent the acquisition, except to insist on the
Award being made under S. 11 before possession is taken. In case of urgency, it is open to the Government to take possession even without
making the Award, as provided in S. 17.
If the acquisition is not for a public purpose, this Court can strike down a Notification issued under S. 6. The Court however cannot at the
instance of the owners, whose challenge to the Notification proved unsuccessful in earlier writ petitions filed by the owner or others claiming under
or through such owners, render its earlier decision upholding the Governments right to compulsory acquire the property, wholly ineffective by
compelling the Government to withdraw from such acquisition. The owner or others interested in the property cannot, by preventing the
Government from taking possession even after the Award is made under S. 11, by resorting to protracted litigation, claim that by reason of the
delay caused by them, the 11 original public purpose has ceased to exist, and that despite existence of a valid notification under S. 6 the
Government should be compelled to withdraw from the acquisition.
The power conferred on the Government by S. 48 of the Act is an unilateral power. The Supreme Court, in the case of Special Land
Acquisition Officer v. Godrej and Boyce 1988 I SCC 51, after examining the scheme of the Act, has land down that,
It is in view of this position that the owners (sic) ests'' remain unaffected until possession is taken. Section 48 gives a liberty to the State
Government to withdraw from the acquisition at any stage before the possession is taken. By such withdrawal no irreparable prejudice is caused to
the owner of the land, and. if at all he has suffered any damage in consequence of the acquisition proceedings or incurred costs in relation there to,
he will be compensated therefore under S. 48(2)"". In this view of the matter, it does not matter even it the is lapses of considerable lime between
the original No notification and the withdrawal as held in Trustees of Bai Smarth Jain Shvetambar Murtipujak Gyanoddhaya Trust and Others Vs.
State of Gujarat and Another, . It also of lows that the State can be permitted to excuse power of withdrawal unilaterally and no requirement that
the owner of the land should be given an opportunity of being heard before doing so, should breed into the provision.
The object of S. 48, therefore, is to in able the Government when it bona fide considers to be in its interests, to withdraw from the acquisition,
subject to its liability to compensate the owner for damage and costs if any, suffered by the owner as a consequence of the acquisition
proceedings. The decision is to be make by the Government and such a decision should not the actuated by any mala fides. The owner of the land
has no part to play in the exercise of the power by the Government under S. 48, except that he may challenge an order made under S. 48, if it is
actuated mala fides.
Learned Counsel for the petitioner (sic) lied on the decisions of this Court in Mohammad Kalimuddin v. State of Madras 1975 II M.L.J 397
and Veeramamunivar Vidyasalai Middle School. Madurai v. Government of Tamil Nadu 1993 WLR 456, wherein this Court slunk down
Notifications issued under S. 48 on the ground that by reason of the delay Government was estopped from withdrawing and that the Notifications
were based on irrelevant considerations. The observations made in these decisions run counter. In the law laid down by the Supreme Court in the
case of Special Land Acquisition officer v. Godrej and Boyce, and to that extent can no longer be regarded as good law. In any event, these cases
dealt with the validity of Notification already issued and no question of directing the Government to issue a Notification under S. 48 arose for
consideration.
Learned Counsel for the State invited attention to the decision of this Court in Suryanarayana Sastriar Elementary School, Madurai through its
Correspondent Mr. N. Krishna v. State of Tamil Nadu and Others 1993 WLR 460 wherein a challenge to the Notification issued under S. 48 was
rejected, and the decision reported in 1993 WL.R. 456 was distinguished. The Statement of the law in that decision is in accordance with the law.
laid down by the Supreme Court in the case reported in (1988) I SCC 50. The result of the foregoing discussion is that this writ petition fails and is
dismissed, with costs.