The State has the power to close down an existing burial ground when it is convinced that the location is injurious to the public, and the acquisition of a new site for a burial ground is a 'public purpose' under the Land Acquisition Act.

ANANTANARAYANAN, J. :- The appeal is instituted from the judgment of Srinivasan, J. in W. P. No. 869 of 1963, a proceeding 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 Tiruvanmiyur 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 propriety 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 aggrieved 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 though 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 Tiruvanmiyur 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 Tiruvanmiyur 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 burial 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