SAROJA SETHU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) PETITIONER herein is a member of the Kodaikanal House Building Co-operative Society Limited No.A.1583. She has been given a house site-vide sale document No.505/69 of the Sub Registration Office, Kodaikanal for the purpose of constructing a house therein to spend the last days of her life, by the society, stating inter alia as follows: "Whereas the "Member" has applied to the society for a A class house in Kodaikanal House Building Co-operative Society Limited, colony in survey No.1, Kodaikanal urban hereinafter referred to as the colony at Kodaikanal and taken one share of the value of Rs.5 (Rupees five only) in the society and deposited the said sum of Rs.5 (Rupees five only) with the society and, whereas the Government has assigned the site necessary for the construction of houses in the said colony in favour of the society and, whereas the society has, after deducting the extent allotted for common purposes such as road, parks, market, shops, school playground and other public amenities common to all the members of the society, divided the land remaining in the total extent assigned by the Government to the society, into plots and allotted them to members and whereas the member has been allotted the plot bearing No.A-30 in the said colony measuring about 25 cents in extent, and whereas, after taking into account the cost of the land set apart for communal purposes as mentioned above and the cost of all other works which have to be carried out for the benefit of all the members, the cost of site in the said plot No.A-30 has been fixed at Rs.25 per cent and whereas the cost of the plot No. A-30 which comes to Rs.625 has been recovered by the society in cash from the member. The society hereby conveys the said plot No.A-30 by virtue of this sale deed to the member to be enjoyed by him, his legal representatives, and assignees with absolute rights from generation to subject to the conditions mentioned hereunder." Following the transfer of the land to her, the petitioner entrusted the house construction work to a contractor. In the meanwhile, however, a notification under Sec.4(l) of the Land Acquisition Act, 1894 (Central Act 1 of 1894) was issued-vide publication in the, Tamil Nadu Government Gazette, dated 27th August, 1980, expressing intention to acquire this land for the purpose of establishing a Repeater Station of the Public Works Department, Hydrology Division. This, however, was modified-vide Gazette Notification dated 5.7.1982, saying that the land was needed for the purpose of Staff Quarters of the Employees of the Repeater Station of the Public Works Department, Hydrology Division. Alleging that having come to know of the notification, the petitioner sent her objections to the Tahsildar/Land Acquisition Officer on several dates and that no enquiry of any kind was held under Sec.5-A of the Act by the competent authority, the petitioner moved this court for a writ in the nature of certiorari and for such other or other further orders as the court deemed fit. PETITIONER stated in the petition as follows: "I state that to my best knowledge, there has been no declaration under Sec.6(1) of the Act. Nor is there any publication of the declaration in the Tamil Nadu Government Gazette which is mandatory under Sec.6(2) of the said Act. It is only after such declaration the Government can direct the Land Acquisition Officer to take orders for acquisition of my site under Sec.7 and after this issue of Notice under Sec.8(l) and calling for making statement under Sec.10 arises. But, even without declaration under Sec.6, the notices under Secs.9(l) and 10 had been issued to me in the Roc.No.66 of 180/A, dated 12.9.1983. These notices were objected to by me. Inspite of this I have been served with a letter under Sec.l2(2) of the said Act in Tahsildar Memo Roc.No.66 of 1980/A, dated 10.11.1983 intimating the amount about Rs.2,200 as compensation awarded for the site and directing to take it in person or by an authorised agent, such fixing of very low compensation for my site is without proper enquiry and is arbitrary and I reserve my right to agitate it in the proper jurisdiction. This apart, such an award is going to be passed under Sec.11 and the possession of the site will be taken under Sec.16 without reference to my civil rights in an arbitrary manner as has been done at every stage." Mention of the notice under Sec.12 of the Act in the above show that some sort of declaration had already been made followed by proceedings leading to the award under Sec.11 of the Act. Respondents have, in their counter, stated so in these words: "It is submitted that at the instance of the Executive Engineer (Public Works Department), Hydrology Division, Madurai, acquisition proceedings were initiated for acquisition of an extent of 0.25 acres of land in S.No.1/6-2A1 of Kodaikanal village for construction of quarters for the staff of Repeater station. The Notification under Sec.4(l) of the Land Acquisition Act in respect of the Land measuring 0.25 acre in S.No.1/6-2Al of Kodaikanal village, Kodaikanal taluk for the construction of staff quarters of Repeater Station was approved in G.O.Ms.No.1345 (Public Works Department) dated 20.7.1980 and published at page No.10 of Tamil Nadu Government Gazette Supplement to part II Sec.2, dated 27th August, 1980. At the time of submission of Notification under Sec.2, dated 27th August, 1980. At the time of submission of Notification under Sec.4(l), the name of the interested person (owner) was noted as President, Kodaikanal House Building Co-operative Society Limited as per Revenue accounts instead of Tmt.Saroja Sethu in the schedule (Form 2A) of 4(1) of the Act. The same was published in the Gazette also. The Government in their letter No.36456 of 1972-81-8, Public Works Department, dated 7.4.1982 ordered to submit an amendment, indicating the name of Tmt.M.S.Saroja Sethu to notification under Sec.4(l) of the Land Acquisition Act. The amendment was published at page 29 of the part II, Sec.1 of Tamil Nadu Government Gazette, dated 23.6.1982. Enquiry under Sec.5-A of the Land Acquisition Act was conducted on 30.8.1982 after observing the usual formalities as laid down under rules. The draft declaration and directions were approved in G.O.Ms.No.1767, Public works Department, dated 19.8.1983 and they were published as extraordinary in Part II, Sec.2 of Tamil Nadu Government Gazette, dated 22.8.1983. The award enquiry was conducted on 3.10.1983 and award passed acquiring 0.25 acre of land in S.No.l/6-2Al of Kodaikanal village for construction of Staff quarters of Repeater station awarding a compensation of Rs.2,199.40 to the landlady in Award No.1/83, dated 3.10.1983. The land was taken possession on 8.10.1983. The awardee did not attend the award enquiry on 3.10.1983 posted at taluk office, Kodaikanal either personally or through a representative but had sent a letter on 29.9.1983 requesting adjournment for six weeks as the Tamil month Puratasi was inauspicious. The award enquiry was conducted on 3.10.1983 as already fixed. The notice under Sec.12(2) of Land Acquisition Act dated 10.11.1983 was sent to the landlady and it was served on her on 22.11.1983. The possession of the land was handed over to the requisitioning body on 8.10.1983. The awardee did not attend the award enquiry and receive the compensation. Now, the awardee has obtained an interim stay confirmed to taking possession of the land. But, the possession of the land was taken on 8.10.1983 and was handed over to the requisitioning body on 8.12.1983 even before the receipt of the stay order from this Honourable Court." There has been serious contentions whether any valid enquiry under Sec5-A had been held, whether procedures prescribed by law have been followed by the respondents in acquiring the land in question and whether on account of the irregularities in the procedure petitioner has suffered any legal injury. But one fact has emerged out of all the controversies between the parties, which relates to the character and purpose of the house site allotted to the petitioner by the society and the nature and character of the society in the eye of the law, which is known as the Land Acquisition Act.

(2.) SECS.4 and 6 of the Act, which apply to all types of land acquisitions under the Act, make no distinction in the procedure of the acquisition of the land for a public purpose or for a company. Sec.3(0) has defined the expression "company" to include, "a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, other than a co-operative society, which falls within the definition of a Corporation owned or controlled by the State, being a society established or administered by Government or being a co-operative society in which not less than fifty one per centum of the paid up share capital is held by the Central Government or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments. The definition of "Public purpose" has undergone quite a few amendments and as it stands today, it includes the provisions of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority or a society registered under the-Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State. As on today, therefore, there cannot be any difficulty in accepting the scheme sponsored by the Kodaikanal House Building Co-operative Society Limited for construction of houses for those who intended to spend their life in Kodaikanal as a public purpose. On the day the notification was issued, however, the "public purpose" had the following definition, "the expression "public purpose" includes-the provision of village-sites, in districts in which the appropriate Government shall have declared by notification in the Official Gazette that it is customary for the Government to make such provision." Even so, when a question arose before a learned single Judge of the Allahabad High Court in Radha Raman v. State of U.P.,A.I.R. 1954 All 700, as to whether acquisition for co-operative housing society will satisfy the definition of a public purpose, the learned Judge stated in his judgment as follows: "The preamble to the Co-operative Societies Act, 1912, says that the object of the Act is to promote self help among poorer people and according to Sec.4 importance is attached to the promotion of interests of the members of the society. Reference was also made to the bye-laws of the society amongst the objects of which are mentioned requirements of the members of the society and the construction of residential houses or other buildings for the convenience of the members and development of a co-operative colony for the convenience and benefit of the members. On the strength of the preamble to the Co-operative Societies Act and the contents of Sec.4 as well as the contents of bye-law No.3 it is argued that the object of the society is to benefit the members only and not any section of the public at large. Reference was also made to Nicholas on Eminent Domain, Volume 2, pages 517,518, 520 and 537. I have considered the argument with care, but I do not think any of these provisions necessarily lead to the conclusion that the acquisition of land for purposes of this Co-operative Society cannot be "useful to the public". The general dearth of residential accommodation in the towns and cities of Uttar Pradesh is very well known, and if a society is found to construct a number of houses and the houses are actually constructed, the construction is likely to ease the situation, as there will be an increase in the total residential accommodation in the town and rents may also possibly go down. This will benefit not only the members of the society but also the resident public of the town. It is true, that the bye-laws of the society as well as the Co-operative Societies Act itself are mainly concerned with the interests of the members of the society. But, if in carrying out those objects a situation is brought out which may also help the other members of the public, the acquisition may, in my opinion be said to be one useful to the public. Sec.4 of the bye-laws of the society shows that the membership is open to all persons of good character and sound mind, who may be residing or carrying on any trade, business or profession in Pillibhit. Anybody in Pillibhit can, therefore, become a member of the society and have the advantages of being a member. In America Housing Societies constituted for the purpose of clearing slumps have been held to be doing work which is of "public use". Slump clearance has been held to be a valid reason for the acquisition of land. The present case cannot be said to be a case of clearance of slumps, but in the conditions prevailing in the towns of this State at present, the construction of more residential houses is, in my opinion, an object which is useful to the resident public of the place." The Allahabad Judge has only carried what has been more specifically stated by a Bench of this Court in the case of Padayachi v. State of Madras, (1952)2 M.L.J. 298: I.L.R. 1952 Mad. 982: 1952 M.W.N.677: A.1.R. 1952 Mad. 756. That was a case of a society formed and registered under the Madras Co-operative Societies Act, 1932 with the object of enabling its members to construct houses. This society considered that certain block of lands within the municipal limits of the city would serve as suitable building sites and moved the Government for its acquisition. The Government gave its consent to the scheme and issued a notification declaring that the lands were needed for public purpose, to wit, construction of houses and in pursuance of this notification proceeded to acquire lands. That was challenged in the court on the ground that the public as such had no interest in the land or buildings, that neither the public nor even a considerable portion thereof would be benefited by the scheme and in effect the acquisition would amount to taking property of one individual and transferring it to another The court answered the same by saying that the society could be regarded as constituted for the benefit of the public, that in general building schemes were to be considered as advantageous to the public and that even though the direct and immediate beneficiaries under the scheme might be individuals it was a public purpose as it benefited the public generally. One can have support to the above view from the judgment of the Supreme Court in the case of Somavanti v. State of Punjab, A.I.R. 1963 S.C. 151: (1963)2 M.L.J. (S.C.) 18: (1963)2 An.W.R. (S.C.) 18: (1963)2 S.C.J. 35: (1963)2 S.C.R. 774 and another judgment of the Supreme Court in the case of Bai Malimabu v. State of Gujarat, (1978)1 S.C.J. 430.A.I.R. 1978 S.C. 515, wherein it is said that construction of staff quarters for the employe ees of dispensary and other employees working under State Insurance Scheme was a public purpose. The definition, as it has stood before the amendment in the year 1984, after which amendment there can be no doubt that any housing scheme of a co-operative society will be a public purpose was obviously not existed and when courts in India, including this court in the case of Padayachi v. State of Madras, (1952)2 M.L.J. 298: I.L.R. 1952 Mad. 982: 1952 M.W.N.677:A.I.R. 1952 Mad. 756, extended its meaning to include house sites of co-operative societies, it will be only reiterating the consensus, when it is said that the Kodaikanal House Building Co-operative Society Limited's acquisition of land by whatever method, whether by negotiations and purchase from the owners or through the process of the law of acquisition of land was/is a public purpose and the society's allotting a piece of land and thereafter transferring the same to her has been an act in furtherance of the public purpose for which the society existed/ exists. In the document of sale, the mention of the fact that the Government has assigned the site necessary for the construction of houses in the said colony in favour of the society and further the words "the society has, after deducting the extent allotted for common purposes such as roads, parks, market, shops, school, playground and other public amenities common to all the members of the society, divided the land remaining in the total extent assigned by the Government to the society, into plots and allotted them to members"are quite significant. The Government has known the purpose for which it assigned necessary site for the construction of houses to the Kodaikanal House Building Co-operative Society Limited and the society in fulfilment of the purpose created roads, parks, market, shops, schools, playground and other public amenities common to all the members of the society and divided the land remaining in the total extent assigned by the Government to the society into plots and allotted them to members, one such member being the petitioner.