VALLIAMMAL Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE appeal is instituted from the judgment of Srinivasan, J. in W. P. No. 869 of 1963, a proceedings before the learned Judge by a certain Valliammal (petitioner)praying for the issue of a writ of certiorari quashing the notification published in the Official Gazette in regard to the acquisition of S. N. 219/28 in Tiruvanmiyar village. The learned Judge went into the facts of the matter, at some length, and ultimately dismissed the proceeding. He did so upon three main grounds, which are set forth in the judgment. The fact was that he was satisfied that the notification under Section 4 (1) of the Land Acquisition Act related to a 'public purpose' concerning which the Government could legitimately exercise their powers of eminent domain. In the absence of any established mala fides or colourable use of power the action of Government in acquiring this site for a burial and cremation ground, could not be assailed in a court of law. The second ground was that, by virtue of certain previous proceedings, the matter was really res judicata, as far as the petitioner was concerned; those proceedings of this court inhibited the petitioner from canvassing the property of the present acquisition upto the stage of the issue of notices under S. 9 (1) of the Act. The third ground was that the argument urged on behalf of the petitioner could not be accepted, for reasons furnished by the learned Judge, that the urgency clause in S. 17 (1) of the act had bee improperly invoked by Government in this case. There was also a defence by Government (first respondent) that the petitioner was not a person arrived or affected, who could properly maintain the proceedings, since the land sought to be acquired was not the land of the petitioner herself, but a land adjacent thereto. But, on this ground the learned Judge observed that thought there was a great deal of force in the contentions of the learned Additional government Pleader, he did not "think it necessary to express any concluded opinion thereon. "

(2.) THE facts can be very briefly stated, and, for the most part, they are really not in controversy. There can be no doubt that, as represented before us by learned counsel, there was an existing burial and burning ground in Tiruvanmiyar village, which Government decided to close down, upon certain representations made by the authorities of the Kala Kshetra, a private Educational Trust with cultural objectives, as far as we can gather, that the proximity of this burning ground to the Educational Institution was very injurious to the inmates of that Institution. Subsequently, as we have indicated earlier, the Government proposed the acquisition of the site, which is now in controversy, and which adjoins the land of the petitioner, Valliammal. The Panchayat Board of Tiruvanmiyar is the third respondent in these proceedings, at the stage of the writ petition and appeal, and we shall have something to say about the attitude taken up by the Panchayat board towards the proposed acquisition. However that might be, the main contentions of the learned counsel for the writ appellant are really as follows:

(3.) FIRSTLY, learned counsel contends that the closure of the prior ground by government was unauthorised and ultra vires the powers of Government, as it was not the Panchayat Board of Tiruvanmiyur (third respondent) that moved for the closure, which should have been the proper procedure under the law. When the closure itself was illegal, no justification really existed for the acquisition of the present proposed site, and this will not be a "public purpose" within the scope of section 4 (1) of the Act. That is one branch or limb of the argument. The other branch of it is that the closure was really due to the persuasion or instigation of the authorities of the Kala Kshetra a private educational Trust. Hence, the action of Government in closing the previous burial ground, and in proposing to acquire the present site, was mala fide, and a colourable exercise of the powers of eminent domain. The third argument is that, in any event, the land ought to be really classified as 'house-site' and not 'arable waste' with the consequence that section 17 (1) of the Act would really have no application to the facts; if that classification is accepted, then the urgency clause would not apply. In that event, the Government could not have legally skipped over the stage of the section 5-A enquiry in the manner that they have done. The skipping over of the Sec. 5-A enquiry has occasioned grave prejudice to the writ appellant, and that is another ground for quashing the acquisition proceedings. Finally, it is urged that the thiruvanmiyur Panchayat Board (third respondent) has been not merely neutral in the proceedings, but implicitly opposed to the closure of the previous burial ground and to the acquisition of the present site. Government had really no business, when there was no co-operation from the Panchayat Board, to take the steps that they have, as a matter of fact, taken in the proceedings.