Case: Jnanedays Yogam Vs. K.K. Pankajakshy

The case of Respondent No. 1 before the High Court in the writ petition was to the effect that she is the owner and is in possession of the land in dispute being R.S. No. 38/1. That she had purchased the property by a registered assignment deed No. 1899 of 1978. At a distance of about 1 km from Respondent No. 1s property is situated Sree Jagannath Temple, which was established by Shri Narayana Guru in 1906. The said temple was managed by the present Appellant No.Respondent No. 4, while present common Appellant No.Respondent No. 5 is the President of the said Sree Jnanedaya Yogam. As part of the festival in the Jagannath Temple, a Pallivetta (Royal Hunt) is performed on the penultimate day of the festival every year. The said festival is being held in the month of March every year. It is performed at a place situated to the south of firstpetitioners property. On that occasion, the deity is taken out on an elephant in procession to the place where the Pallivetta is performed. This religious function lasts for an hour. In the said function, the deity is taken down from the back of the elephant and placed at the appointed site and the devotees and the priests perform religious ceremony for propitiating the deity and a pumpkin is cut at the said place to ward off evil spirits and for earning religious merit. According to Respondent No.petitioner, there is no fixed route through which the elephant carrying the idol and the procession of devotees passes every year on the aforesaid occasion. At the instance of the present appellants, a part of Respondent No. 1s land, wherein stands a pucca built shop, was sought to be acquired under the aforesaid impugned notification for having a passage for the elephant carrying the idol on the occasion of the aforesaid religious function and the said requirement for the passage of the elephant was for one hour every year in the month of March.3. The said notification was challenged on diverse grounds before the learned Single Judge of the Kerala High Court. The learned Single Judge, after hearing the parties, allowed the original petition and held that when acquisition was not for public purpose, but for a company or for a society like Appellant No. 1, the acquisition was governed by Part VII of the Act and consequently, Section 17(4) dispensing with Sectionenquiry could not get attracted.4. Being aggrieved by the decision of the learned Single Judge, present Appellant No.Respondent No. 4, filed Writ Appeal No. 377/1990 before the Division Bench of the High Court, while original Respondent Nos. 1, 2, 3 and 6 filed Writ Appeal No. 400 of 1990 challenging the very same judgment of the learned Single Judge. Both these appeals were heard together by the Division Bench of the High Court and by a common Order dated 27.1.1995, the Division Bench of the High Court dismissed both the appeals. That is how original Respondents Nos. 4 and 5 in the writ petition have filed these appeals on leave granted by us.

Reasoning:
When the acquisition is for the company for construction of some work as laid down by Section 40(1)(b), the Company concerned has to enter into an agreement with the appropriate Government. As required by Section 41(5), the company has to satisfy the appropriate Government about the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work. A conjoint reading of Sections 40(1)(b) and 41(5), leaves no room for doubt that the construction of such work for the company must be of such nature that it should be perennially and directly useful to the public and should not be of a sporadic or of a temporary nature. In other words, it should be permanently useful to the public for all time to come and the public can directly use that work constructed by the company as and when occasion arises. Such work has to be finished within the time schedule laid down by Section 41(5) and conditions on which the work has to be executed and maintained are also to be laid down. Maintenance of such work by the company for supporting the acquisition in question necessarily means maintenance on a permanent basis.Learned counsel for Respondent No. 1contended that providing for a passage for a decorated elephant carrying the idol of the deity followed by the procession of devotees only once in a year at the time of festival and for which purpose the land in question has to be required for not more than an hour every year, cannot amount to any need for construction of such work, which has to prove permanently useful to the public for all the year round or even for an indefinite period incannot be doubted that if premises of the temple are landlocked, and a passage is to be carved out from the surrounding land so that devotees representing a class of public can approach the place of religious worship may be even once every year, acquisition of appropriate surrounding land for that purpose can squarely be covered by Section 40(1)(b) as such a permanent carving out of passage by levelling the acquired land can legitimately be treated to be construction of work directly useful to the public. With respect, the Divisions Bench has too narrowly construed the terminology employed by the legislature in Section 40(1)(b). It must, therefore, be held that if an approach road to the temple or the place where religious ceremonies are to be performed is to be laid on a permanent basis for perennial use of the members of the public, being devotees, even if to be utilised every year on a single occasion for approaching the place of religious worship, then acquisition of such land would be for construction of some work which is likely to prove directly useful to the public, as the members of the public, being devotees, can walk over the said constructed approach road for all times to come for going to the religious place concerned.Work of carving out a passage would certainly amount to construction of the passage in question. Construction does not necessarily mean construction over the land which must rise above the surface of the land in all contingencies. It cannot be held that for this type of need, the acquisition proceedings could not have been resorted to at all.The aforesaid decisions clearly indicate that permissible acquisition for the company under Part VII would be those type of acquisitions where the land sought to be acquired on a permanent basis must be required to be utilised for construction of works which are directly useful to the public. According to learned counsel for the appellants on the facts of the present case, it can be said that when devotees pass by the road or passage to be carved out for permitting the religious procession to move towards the place of festival, the said construction of road would amount to construction of a work directly useful to the public. We find considerable force in this contention. To this extent, the decision of the Division Bench with respect is erroneous.15. One aspect of the matter which stares in the face has to be kept in view. The procession accompanying the elephant carrying the idol of the deity may require an appropriate passage for reaching the destination. That need may not be a continuous need as such. A festival may take place once in a year. However, for laying down such a passage if any construction intervenes and has to be demolished it cannot be said that such a requirement is of a sporadic nature or could be met requisitioning the premises from time to time every year. It is easy to visualise that once the passage is cleared by demolishing the shop for allowing the procession along with the elephant to pass over the said land in a given year, next year when the occasion arises the same shop, if permitted to bein the meantime, will have again to be demolished. That would create an impossible situation not beneficial to any one. For such a purpose, therefore, even though the requirement may be repeated every year and may be even for one hour in the month of March each year, the need for keeping such a passage open would be a perennial need and obviously will be of a permanent nature. Such requirement cannot be met by merely requisitioning the premises from time to time every year but the land over which the passage has to be carved out has to be kept open throughout the year and, therefore, must vest in the authorities by following the procedure of acquisition, if legally permissible. It is not possible to agree with the contention of learned counsel for the Respondent No. 1 that such a need is a temporary need which would, if at all, call for requisitioning the land from time to time instead of resorting to the procedure ofour view, on the peculiar facts of this case, basic requirements of Section 401(b) of the Act are not met at all. The reason is obvious. The site plan placed before us by both sides, and on which there is no dispute, shows that the main road over which the procession has to proceed on spot is on the northern side. The respondent No. 1s disputed land is situated on the southern side of the main road. There is fence put up by the respondent over her land and leaving the compound land the respondent has put up a residential house in one corner of her land and there is a row of shops built up by her facing the main road towards the north just touching the main road on the Northern side. The last shop touching the main road is constructed on the disputed land which is sought to be acquired. The destination of the procession is on further southern side of the respondents land. For reaching that destination where the procession has to end and the idol has to be taken down from the elephants back for carrying out the religious ceremony, the procession has necessarily to go through the open land adjoining the respondents compound land. The respondents learned counsel, on instructions, made it clear that the respondent will have no objection in allowing the procession along with the elephant to go through the open land in her compound for approaching the southern side and for reaching the destination. For that purpose, instead of cutting across her last shop in the row, the procession can divert its route by five to ten feet on further right hand side while going towards South and can go through her compound land for reaching the destination. This little diversion of the road may save her shop without in any way hindering the procession for reaching the destination. In our view, the said stand of the respondent is quite fair. In fact, such an alternative route could have been suggested before the acquiring authorities. However, as procedure of Section 5A of the Act was dispensed with, the acquiring authorities got no opportunity to consider the alternative route suggested by her. It is obvious that such an alternative route would have satisfied the requirements underlying the acquisition proceeding for ensuring a convenient passage for the procession along with the elephant. Such procession could have easily utilised such alternative route without disturbing and cutting across the respondents existing shop on spot. When we put this to the learned senior counsel for the appellants, he stated that on principle there may not have been any objection on this aspect but for the fact that astrologers consulted by the appellant temple have advised that the route of the procession cannot be changed and it is only the old route which is a sanctioned route. Now it is easy to visualise that this stand of the appellant clearly show that the so called need for having the passage for the movement of the elephant and the procession only through the acquired land after demolishing Respondent No. 1s shop is not a genuine need of the temple or for that matter of the members of the public, who are the devotees and who would join in the procession every year. It is merely the sentimental approach of the temple authorities, solely depending upon the astrologers information which was made the sole basis for supporting the acquisition in question. It is easy to visualise that different astrologers opinions can be contradictory even on given facts. That can certainly not be treated to be a genuine need for public when the suitable passage for movement of elephant and the procession can be easily obtained on spot without disturbing or demolishing the shop. A title diversion of the route cannot, therefore, be held to be an impermissible possibility nor can the insistence by the astrologers not to divert the route can be taken to be a genuine need for construction of the road only by cutting across the intervening shop of the respondent so as to justify acquisition proceedings under Section 40(1)(b) of the Act. On the facts of the present case, therefore, there is no escape from the conclusion that theneed for having a passage only through the land on which the respondents Â? structure stands was not a genuine and felt need for construction of the road for the use of the public.