KHAN BAHADUR CHOWKARAN KELOTH MAMMAD KEYI Vs. PROVINCE OF MADRAS REPRESENTED BY THE COLLECTOR OF SOUTH KANARA

JUDGEMENT

(1.) In the year 1936 the Government of Madras proposed to acquire a small strip of land for the purpose of making a foot path by the side of a Hindu cremation ground at Kesargod. The total area only measured 13 cents of an acre. On the 26 August, 1936, a notification was published under Section 4 of the Land Acquisition Act and on the 26 January, 1937, a notification was published under Section 6 of the Act. The appellant, who was the owner of the land, objected to the acquisition and after the publication of the notification under Section 6, he persisted in his objection. He succeeded in persuading the Collector of South Kanara that the acquisition was not necessary. The result was that the Government changed its mind and passed an order which said: The Collector of South Kanara is therefore requested to take steps to withdraw from the acquisition proceedings and submit through the Board of Revenue the necessary notification to Government under Section 48(1) of the Land Acquisition Act, for publication. As a result of representations made by the District Board, the Government again changed its mind and decided to proceed with the acquisition. No notification of withdrawal under Section 48(1) had been published. This later order was passed on the 10 November, 1937. Accordingly the acquisition proceedings were continued and the land was duly acquired.

(2.) On the 18 July, 1938, the appellant filed a suit in the Court of the District Munsiff of Kesargod for a declaration that the acquisition was unlawful on the ground that as the Government had decided to withdraw from the acquisition it could not proceed without fresh notifications under Secs.4 and 6 of the Act. The District Munsiff dismissed the suit and this decision was concurred in by the District Judge of South Kanara on appeal. The plaintiff then appealed to this Court. The appeal was heard by Chandrasekhara Aiyar, J., who agreed with the Courts below. The present appeal is from the Judgment of the learned Judge under Clause 15 of the Letters Patent.

(3.) Sub-section (1) of Section 48 says that except in the case provided for in Section 36 (which does not apply here) the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. Rule 5 of the rules framed under that Act states that if Government decides to give up the acquisition a notification under Section 48(1) withdrawing from it shall be published by it. It is not suggested that this rule is ultra vires. In fact, the learned Counsel for the appellant accepts that it is intra vires. The rule makes it compulsory for Government to notify a withdrawal if it decides on this course. The order to the Collector of South Kanara merely directed him to take steps to withdraw the acquisition proceedings and submit through the Board of Revenue the necessary notification for publication. As we have shown, before the notification was published the Government decided to go on with the acquisition. We consider that in the circumstances it was entitled to do so without re-notification under Secs.4 and 6.