(Appeals (disposed of on 30-7-1945) against the decree of the Court of the Subordinate Judge, Narasapur in A.S. Nos. 93 and 96 of 1943 respectively preferred against the decrees of the Court of the District Munsif, Eilore in O.S. No. 171 of 1936.)

Leach, CJ.

The appellant in these appeals is a ryot cultivating ryotwari land in the village of Kovvali which is in the West Godavari district. In 1935 a small part of his holding, to be exact five cents of an acre, was acquired by the Provincial Government for the purpose of the construction of a water channel which was required for the irrigation of three holdings of ryotwari land cultivated by other persons in the same village. The compensation awarded was Rs. 77-10-0. The appeals arise out of a suit which the appellant filed in the Court of the District Munsif of Ellore for a declaration that the acquisition was illegal on the ground that the land was not required for a public purpose. It was further stated that as the Government had only contributed one anna to the compensation awarded the proviso to S. 6(1) of the Land Acquisition Act had not been complied with. The District Munsif dismissed the suit. He held that it was not open to the plaintiff to go behind the declaration issued under S. 6(1) of the Land Acquisition Act and that the proviso to S. 6(1) had not been infringed but he directed that the parties should bear their own costs. On appeal the Subordinate Judge of Narsapur agreed with the District Munsif that the suit should be dismissed, but disagreed with him with regard to the order for costs. The Subordinate Judge held that as the Provincial Government had successfully defended the suit it was entitled to costs. S.A. No. 1161 of 1944 is from the decree dismissing the suit and S.A. No. 1162 of 1944 is from the Subordinate Judges order with regard to costs. The appeals have been placed before a Full Bench for decision as there is a conflict of authority on the effect of the proviso to S. 6(1).

Before dealing with the conflict it is necessary to decide whether a declaration under S. 6(1) of the Land Acquisition Act is final or whether it is open to the Court to inquire and decide whether the land was really required for a public purpose. S. 5-A gives a person the right to object to a proposed acquisition. Any objection preferred must be inquired into by the Collector, who is required to submit the case for the decision of the Provincial Government. The section states that the decision of the Provincial Government on the objection shall be final. In this case the appellant did object and his objection was heard by the Collector who in accordance with S. 5-A submitted the record of the proceedings to the Provincial Government. The Provincial Governments decision was that the acquisition should proceed.

By an order dated the 7th April 1936 under S. 6 the Provincial Government declared that the land in suit was needed for a public purpose and appointed the Revenue Divisional Officer, Ellore, to perform the functions of a Collector under the Act and directed him to take order for its acquisition. Sub-S

. (3) of S. 6 states that the declaration shall be conclusive evidence that the land is needed for a public purpose or for a company as the case may be; and, after making the declaration, the Provincial Government may acquire the land in the manner provided by the Act. Sub-S

. (3) makes it quite clear that the declaration of the Provincial Government cannot be questioned in a Court of law. Of course, if the Provincial Government in fraud of its powers directed land to be acquired a suit would no doubt lie; but where there is no charge against the Provincial Government that it has acted in fraud of its powers, its action in directing the acquisition cannot be challenged in a Court of law. In answer to a direct question put by the Court the learned Counsel for the appellant very properly said that it could not be said that the Provincial Government had acted in fraud of its powers.

We may mention that in Wijeyesekara v. Festing (1919 A.C. 646) the Privy Council held that where the Governor of Ceylon under the Ceylon Ordinance dealing with land acquisition directed the Government agent to take orders for the acquisition of the specified land it was not open to the owner to contend that the land was not required for a public purpose. The Ceylon Ordinance did not embody provisions similar to those embodied in S. 5-A(2) and S. 6(3) of the Indian Land Acquisition Act, and therefore there is even less room for argument here. The appellants suit clearly did not lie on the footing that the land was not required for a public purpose. The declaration by the Government settled that question.

We will turn now to the argument based on the fact that the Provincial Government only paid one anna of the compensation and the balance was paid by the cultivators of the three holdings whose lands were to be irrigated by the channel. The proviso to S. 6(1) reads as follows:

Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.

In Ponnaia v. Secretary of State for India (51 M.L.J. 338 = 24 L.W. 513) Spencer and Ramesam, JJ. held that where the Government had only contributed one anna towards the compensation the land acquisition proceedings were illegal and void because this meant a mere evasion of the requirement that the compensation was to be paid wholly or partly out of public revenues. In coming to this decision the learned Judges relied on observations made in Chatterton v. Cave (1878) 3 A.C. 483) which had reference to the interpretation of the words or part thereof occurring in the Dramatic Copyright Act, 3 and 4 William IV C.15 where it was said that part was not necessarily the same as particle. Although they set aside the acquisition in Ponnaia v. Secretary of State for India (51 M.L.J. 338 = 24 L.W. 513) the learned Judges recognised that a declaration by Government under S. 6(1) was final and therefore could not be challenged in a Court of law.

The judgment of Spencer and Ramesam, JJ. was stongly criticised by Odgers and Madhavan Nair, JJ. in Senja Naicken v. Secretary of State (50 Mad. 308 [LQ/MadHC/1926/387] = 25 L.W. 34) which was heard in the same year. Odgers and Madhavan Nair, JJ. disagreed entirely with the decision in Ponnaia v. Secretary of State for India (51 M.L.J. 338 = 24 L.W. 513) and held that payment out of public funds of one anna was sufficient compliance with the provisions of the proviso to S. 6(1). Odgers, J. doubted whether the remarks in Chatterton v. Cave (1878) 3 A.C. 483) dealing as they did with the question of copyright could have any application when the question was of the interpretation of S. 6 of the Land Acquisition Act. We are in entire agreement with this criticism. The two cases have nothing in common.

In interpreting the proviso we can only have regard to the words used and in our judgment it is sufficient compliance with the proviso if any part of the compensation is paid out of public funds. One anna is a part of the compensation. It is true it is a small part, but it is nevertheless a part. We consider that the learned Judges who decided Senga Naicken v. Secretary of State (50 Mad. 308 [LQ/MadHC/1926/387] = 25 L.W. 34) took the correct view. Consequently we overrule the judgment in Ponnaia v. Secretary of State for India (51 M.L.J. 338 = 24 L.W. 513) so far as it relates to tins question. This means the dismissal of S.A. No. 1161 of 1944 with costs.

We also dismiss S.A. No. 1162 of 1944 with costs. The Provincial Government won in the District Munsifs Court and it won in the Subordinate Judges Court and therefore was entitled to costs in both the Courts.