Kerala High Court
P.N. Menon And Anr. vs Corporation Of Calicut And Ors. on 28 July, 1994
Equivalent citations: AIR1995KER136, AIR 1995 KERALA 136, (1994) 2 KER LJ 565 (1994) 2 KER LT 549, (1994) 2 KER LT 549
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT Thomas, J.
1. A bottleneck on the National Highway No. 17, located at Mu-thalakulam Junction (in Kozhikode City) is a traffic construction. With the cramming of motor vehicles on the road, particularly during peak hours, the aforesaid bottleneck aggravates the traffic sqeeze. Suggestions were mooted for widening the road at the site. Shopkeepers at this location naturally became apprehensive of its adverse impact on their trade. So they moved the authorities and they succeeded in averting evacuation for a long time, despite the efforts made by the Government earlier to acquire land for widening the road at this site.
2. Government issued a notification on 29-10-1991 under Section 4(1) of the Land Acquisition Act (for short 'the Act'). It was a composite notification containing a proposal to exercise emergency powers under Section 17(4) of the Act also. It was challenged by different -persons including some of the petitioners herein and this court quashed the notification as per the judgment reported in C. Abdul Ameer v. Special Tahsildar (1992 (2) Ker.LJ 61).
3. Government then issued a fresh notification under Section 4(1) of the Act on 4-8-1993 which is the principal target of attack in the present cases. Appellants challenged the notification under Article 226 of the Consti-tution. Those original petitions were dismissed by a learned single Judge as per the common judgment which is impugned in these appeals. Another occupant of the land has later filed an original petition for the same relief and that has been referred to the Division Bench to be heard and disposed of along with the appeals. All were heard together.
4. Pursuant to the issuance of the notification dated 24-10-1991 Government have since made a declaration under Section 6 of the Act which too is now made a focus for challenge in the appeals.
5. The first point raised is that since the earlier notification (dated 29-10-1991) is still in force Government cannot, under law, issue another notification under Section 4(1) of the Act for the same purpose and for the same land. The premise for the said contention is that the earlier notification (dated 24-10-1991) has not been quashed by this court in the decision reported in C. Abdul Ameer's case (cited supra). (That notification was marked as Ext.P7 in the said case). The operative portion of the decision in Abdul Ameer's case reads thus :
"The foregoing discussion would show that Ext. P7 notification in O. P. 2465 of 1992 is not sustainable and I quash the same. The Collector will make an enquiry as provided under Section 5A of the Land Acquisition Act and consider the representations made by the petitioners and lake a final decision before declaration is made".
From the above it is difficult to conclude that this Court has noi quashed Ext. P7 notification in full. The language employed in the penultimate sentence is capable of giving a clear meaning that the notification was quashed in full albeit in the last sentence.
6. Be that as it may, we will assume, for argument's sake, that the notification dated 24-10-1991 was not quashed in full. Then the question is whether Government could issue another notification under Section 4(1) of the Act for the same land and for the same purpose. It must be pointed out that there is nothing in the Act which prevents the Government from issuing a fresh notification under Section 4(1) of the Act despite issuance of a similar notification earlier. Government may find it necessary in some cases to issue a fresh notification. With changes in the situation or with the development of new contingencies or with crystallization of newer or additional needs the Government may consider the necessity or feasibility of issuing a fresh notification under Section 4(1) notwithstanding the subsistence of an earlier one. If the Government issues a second notification under Section 4(1) for the same land and for the same purpose the only consequence is that the earlier notification would stand superseded. The purpose of issuing a notification under Section 4(1) of the Act is to inform all concerned that a particular land in a particular locality is needed or is likely to be needed for a public purpose. Normally a second notification under Section 4(1) of the Act would not be prejudicial to the land owner as the lapse of time would only escalate the land value. So the second notification would comparatively be to the advantage of the land owner since the land value has to be fixed as on the date of such second notification. So no prejudice would enure to the land owners if a fresh notification is issued. Whatever it be, there is no legal hurdle in issuing such a fresh notification notwithstanding the currency of any earlier notification.
7. Of course, a Division Bench of the Patna High Court in Harihar Mandar v. State ofBihar(AIR 1963 Pat 139) has observed that a notification issued under Section 4 can be cancelled only through another notification similarly published as provided under Section 21 of the General Clauses Act. But the question considered in that decision was regarding the mode of cancellation of the notification arid not the question whether a second notification could be issued at all.
8. In the decision reported in State of M.P. v. Vishnu Prasad (AIR 1966 SC 1593), K. N. Wanchoo, J. (as he then was) speaking for the majority, has observed that it is open to the Government to issue another notification under Section4 with respect to the same locality "if the Government requires more land in that locality besides that notified under Section 6. There is nothing to prevent it from issuing another notification under Section 4 making a further survey, if necessary, hearing objections and then making another declaration under Section 6". Learned counsel tried to distinguish the said decision contending that the ratio in the decision is to the effect that a second notification can be contemplated only after exhausting all the follow up steps envisaged in the Act. Of course from the facts of the said case, the question framed was whether successive declarations under Section 6 of the Act could be made, and it was in the said context that the Supreme Court observed that a fresh notification can be issued under Section 4( I) and without such a fresh notification the Government cannot make a fresh declaration.
9. In B. Chatterjec v. State of West Bengal (1969 (3) SCC 675) : (AIR 1969 NSC 73) J. C. Shah, J. (as His Lordship then was) observed that "when successive notifications under Section 4(1) of the Act have been issued in respect of the same land, an inference can be drawn that Government intended to supersede the earlier notifications by later notification". The said decision was considered by a Division Bench of the Calcutta High Court in J.N. Chatterjee v. State (AIR 1971 Cal 458) and held that it is open to the Government to issue a second notification under Section 4( 1) of the Act in respect of the same locality, no matter that a notification was issued earlier for the same purpose.
10. The above decisions would thus support the view that there is nothing legally wrong in issuing a fresh notification under Section 4(1) of the Act for the same land and for the same purpose. Such a fresh notification would, normally, supersede the earlier one.
11. Next contention advanced was that since Government were debarred from initiating fresh proceedings on account of the stay order passed by this court the present steps are without authority. A copy of the stay order is Ext.P8 in the present case. But Ext.P8 order only shows that this court has stayed all further proceedings pursuant to the notification dated 24-10-1991. Issuance of a fresh notification under Section4(1) of the Act is, apparently, not in derogation of Ext.P8 order.
12. Learned counsel for the petitioners contended that the fresh proceedings now initiated for acquisition had stemmed from mala fides as the same is rooted in the desire to benefit one M/s. Manuel & Sons, a firm which had put up a multi-storied three star hotel building on the eastern side of Muthalakulam Junction as the motive is to give a face lift to their new edifice. The decision of the Supreme Court in State of Punjab v. Gurdial Singh (AIR 1980 SC 319) was cited by the counsel to support his contention that a public purpose could be a camouflage for an oblique motive. But none of the petitioners could present a single material whatsoever for supporting the case of mala fides to make a bald allegation like that. Moreover, petitioners have not made M/s. Manuel & Sons a party in any of these proceedings and hence we cannot make any observation against the firm. That apart, it has not been disputed that widening the road at this site is a public purpose of long felt need, although petitioners have pointed out that bottle-necks on this National Highway are in existence at other spots also.
13. Smt. Sumathi Dandapani, learned counsel for one of the appellants highlighted a feature that Government made a vast expansion of the land acquisition in their declaration under Section 6 by including a much larger area than what was proposed in the notification issued under Section 4(1) of the Act. Of course, this aspect was pressed into service to support the case of mala fides. In the notification issued under Section 4(1) of the Act a schedule was provided showing the area falling under each re-survey number. But Government have made it clear in the notification itself that such extent shown in the schedule is only an approximate estimation. under Section 4(1), Government are not obliged to state the precise extent of the land to be acquired. The sub-section only requires that in the notification Government must indicate that the land in a particular locality is needed for a particular public purpose. Even the marking of the land need be made only subsequently as provided in Section 5A of the Act. This means that the notification need not specify the extent of land necessary for the purpose. Even in the next stage when the declaration is made under Section 6, the Government is not obliged to indicate the precise area to be acquired because activities relating to measurement of land for acquisition would ensue only thereafter. -Supreme Court has observed in Narendrajit v. State of U.P. (AIR 1971 SC 306) that the extent or even the identity of the land in the precise manner are not expected to be indicated in the notification issued under Section 4(1) of the Act. So, the mere fact that some approximate extent happened to be shown in the notification issued under the sub-section the Government are not pegged down to that extent or area thus shown on subsequent stages of acquisition.
14. We are, therefore, not inclined to interfere with the decision of the learned single Judge, nor with the impugned notifications.
15. Learned counsel made a last plea on sympathetic grounds. They pointed out that petitioners are depending on the income derived from the trade conducted in the shop rooms situated on the lands proposed to be acquired. On that premise it was pleaded that a direction be issued to the District Collector for accommodating them in the shop rooms available in the new building of the Corporation situated opposite to the Corporation Stadium. (District Collector, Kozhikode is at present the administrator of the Corporation also). We make it clear that it is open to the petitioners to make representations to the District Collector in that behalf and the District Collector will pass appropriate orders thereon. Nothing contained in this judgment shall prejudice them in making such representations.
With the said observations, we dismiss the writ appeals/and the original petition.