MOOSA HAJI Vs. SPECIAL TAHSILDAR FOR LAND ACQUISITION
LAWS(KER)-1963-8-48
HIGH COURT OF KERALA
Decided on August 12,1963

MOOSA HAJI Appellant
VERSUS
SPECIAL TAHSILDAR FOR LAND ACQUISITION Respondents


Referred Judgements :-

DIWAN CHAND V.NIZAM DIN [REFERRED TO]
STATE V.NAND LAL [REFERRED TO]


JUDGEMENT

- (1.)A common question arises for determination in these writ applications: whether the declaration, evidenced by Ext. P. 3 in each of these applications, made under S.6 of the Land Acquisition Act, 1894 (Central Act I of 1894), is liable to be quashed in view of the fact that S.5 of the Act has been dispensed with. It is clear from Exts. P. 2 and P. 3 in each of these cases, Ext. P. 2 being notifications issued under S.4(1) that the land sought to be acquired and taken possession of was meant for the purpose of building an additional Ward attached to the hospital in Calicut Municipal Town. Ext. P. 2 notifications have dispensed with the provisions of S.5. This action was apparently taken under S.17(4) of the Act. That section is in these terms:
"17(4). In the case of any land to which, in the opinion of the appropriate Government, [the provisions of sub-s.(1) or sub-s.(2) are applicable, the appropriate Government may direct that the provisions of S.5A shall not apply, and, if it does so direct, a declaration may be made under S.6 in respect of the land at any time after the publication of the notification under S.4, sub-s.(1)."

In order that S.17(4) can apply, one or other of the purposes mentioned in S.17(2) as amended by the Madras Legislature and reading as under must exist.

"17(2). In the following cases, that is to say --

(a) Whenever owing to any sudden change in the channel of any navigable rive or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a riverside or ghat station, or of providing convenient connection with or access to any such station,

(b) Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land --

(i) for the purpose of any library or educational institution, or

(ii) for the construction, extension or improvement of --

(A) Any Building or other structure in any village for the common use of the inhabitants of such village, or

(B) any godown for any society registered or deemed to be registered under the Madras Cooperative Societies Act, 1932, or

(C) any dwelling house for the poor, or

(D) any irrigation tank, irrigation of drainage channel or any well, or

(E) any road,

The Collector may, immediately after the publication of the notice mentioned in sub-s.(1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances."

(2.)It is conceded on behalf of the State that the acquisition did not relate to arable land or any waste land and so S.17(1) cannot apply. As far as S.17(2) is concerned, various purposes have been mentioned ; but the only relevant one for the purpose of this case is that contained in S.17(2)(b)(ii)(A) which enacts,
"Any building or other structure in any village for the common use of the inhabitants of such village."

(3.)This leads to the further question whether the acquisition was for constructing any building or other structure in any village for the common use of the inhabitants of such village. The land in question is situate within the Municipal limits of the Calicut Municipality. This can hardly be said to be a place which can be called a village. It may be useful to refer to two decisions. These decisions are reported in Diwan Chand v. Nizam Din (AIR 1924 Lahore 662 (1)) and in State v. Nand Lal (AIR 1953 Pepsu 103). In Diwan Chand v. Nizam Din (AIR 1924 Lahore 662 (1)), Their Lordships said :
" 'village' connotes ordinarily an area occupied by a body of men mainly dependent upon agriculture or occupations subservient thereto."

These conditions cannot be said to be satisfied with regard to the inhabitants of the Calicut Municipal Town.

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