Kerala High Court
A.L. Sreenivasa Shenoy And Ors. vs State Of Kerala And Ors. on 22 December, 1967
Equivalent citations: AIR 1968 KERALA 325
Author: V. Balakrishna Eradi
Bench: V. Balakrishna Eradi
JUDGMENT Krishnamoorthy Iyer, J.
1. This appeal is directed against the decision of a learned Judge of this Court dismissing in limine the petition filed by the appellants under Article 226 of the Constitution.
2. The properties comprised in S. Nos. 638/3 and 665/2 in Pallipuram village, Cochin taluk, having an extent of 37 acres and lying in one compact block belonged to A. N. Laxmana Shenoi, rather of appellants 1 and 2 and grandfather of the third appellant. After the death of Laxmana Shenoi, the property devolved on the appellants.
3. Even during the lifetime of Laxmana Shenoi the Directot oi Harijan Welfare, Trivandrum, submitted proposals to the Tra-vancore-Cochin Government for the acquisition of 1.76 acres out of the above-mentioned property, for the formation of a Harijan Colony at Pallipuram. A. N. Laxmana Shenoi filed the original of Ext. P-1 petition dated 12-4-1955 before the Board of Revenue, Travartcore-Cochin State, objecting to the acquisition. He was served with the endorsement Ext. P-2 dated 21-4-1955 to the effect that the matter is receiving the attention of the Board. In the month of May or June 1959, on account of unusual sea erosion in Pallipuram village, nearly 20 fishermen families residing there were rendered homeless and they trespassed into the properties comprised in S. Nos. 638/3 and 665/2 in the Pallipuram village belonging to the appellants, constructed huts and began residing there.
4. The Government of Kerala published a notification dated 25th June, 1959, under Section 3 (1) of the Cochin Land Acquisition Act 2 of 1070 (hereinafter referred to as 'the Cochin Act') to the effect that 1 acre 34 cents comprised in S. No. 638/4 and originally forming part of S. No. 638/3 and 44 cents comprised in S. No. 645/7 and originally forming part of S. No. 665/2 in Pallipuram village belonging to the appellants are needed for a public purpose, namely, for the formation of a Harijan Colony. The copy of the notification it Ext. P-3. The notice under Section 3 (1) of the Cochin Act was served on the first appellant on 11-9-1959.
Since the appellants did not file any objections under Section 4-A of the Cochin Act to the proposed acquisition, there was no enquiry under Section 4-A (2) of the Act. The declaration of the intended acquisition under Section 5 (1) of the Cochin Act is dated 23-1-1962 and was published in the Kerala Gazette dated 20-3-1962 (Part I, p. 781). Notices issued under Section 8 (3) and Section 9 of the Cochin Act were served on the first appellant on 14-6-1962. Ext. P-4 is the copy of the notice issued under Section 8 (3) of the Cochin Act. The first appellant on 20-6-1962, filed the original or Ext. P-5 petition before the Minister for Harijan Welfare, Kerala State, for dropping the land acqui-sition proceedings. The petition was forwarded to the District Collector, Erna-kulam, for his remarks and Ext. B-1 is the copy of his reply dated 11-2-1963 addressed to the Government. Paragraphs 2 and 4 of Ext. R-1 are in these terms:--
"2. From the enquiries made through the Special, Tahsildar, Harijan Welfare, Ernakulam on the objection petition the following facts are revealed.
The petitioner had not raised any objec-tions against the acquisition within the sta-tutory period after the publication of the notification under Section 3 (1). The site proposed for acquisition is a good coconut garden. But it is not correct to say that me coconut trees will have to be cut down for putting houses there. Small houses can be put up in between the spaces left by the cocoanut trees. The owner of this land is a landlord who possesses about 87 acres of land in one block in this locality and hence the proposal for the present acquisition.
x X X X "4. However, in view of the strong objections of the petitioner, the acquisition for the colony can be restricted to 76 cents which would be sufficient to provide 20 families with 3 or 4 cents for a colony. The cost of acquisition can also be reduced in this way. A convenient block of 76 cents of land has been selected with a view to require laud with his improvements thereby reducing the cost of acquisition. The District Welfare Officer Ernakulam has also agreed to this proposal."
5. The Government in view of Ext. R 1 ordered in G.O. Ms. 1594/64/RD dated 8-9-1964 that 76 cents of land from the proposed area need alone be acquired for housing the twenty families referred to in Ext. R-l and directed the withdrawal of 1 acre 2 cents from the acquisition. Accordingly a withdrawal notification dated 20-3-1965 was published by the Government in the Kerala Gazette dated 30-3-1965 withdrawing the area of 1 acre and 2 cents from 1 acre 78 cents under Section 52 (1) of the Kerala Land Acquisition Act, 1961.
6. The Kerala Laud Acquisition Act, 1961 (Act 21 of 1962) (hereinafter referred to as 'the Kerala Act') came into force on 1-4-1963. Section 62 thereof repealed the Cochin Act. Notices under Sections 9(3) and 10 of the Kerala Act were served on the first appellant on 17-2-1966 regarding 76 cents which the Government finally decided to acquire. Ext. P-7 is the copy of the notice under Section 9 (8) of the Kerala Act. On receipt of Ext. P-7, the first appellant filed petitions dated 22-8-1966 before the Government and the Revenue Divisional Officer, Fort Cochin pointing out that the requirements of Sections 3 and 5 oi the Kerala Act, in respect of the acquisition of 76 cents have not been complied with and the proceedings relating to the said acquisition are illegal and without jurisdiction and have therefore to be dropped. Ext. P-10 is the reply received by the first appellant from the Revenue Divisional Officer, Port Cochin, rejecting his prayer.
7. In the meanwhile, in pursuance to the notice received under Section 9 (8) of the Kerala Act, the appellants filed their statement of claims on 6-3-1966 and the Land Acquisition Officer passed the award under Section 11 of the Kerala Act on 29-3-1966 in respect of 76 cents of land. But the notice of the award under Section 13 (2) of the Kerala Act was served on the appellants only on 4-8-1966 after the filing of the petition on 10-6-1966 in this Court.
8. The prayer in the petition is to quash Exts. P-3, P-4, P-7 and P-10 and to prohibit the respondents from taking further steps in pursuance to Exts. P-7 and P-10 in respect of 76 cents of land.
9. The learned Judge rejected the petition taking the view that the area of the acquisition was reduced because of the representation made by the appellants which is evidenced by Ext. P-10 and the proceedings started under Cochin Act can be continued under the Kerala Act in view of Section 4 of the Interpretation and Genera! Clauses Act.
10. The appeal was admitted and notice ordered to the respondents by a Bench consisting of his Lordship the Chief Justice and Velu Pillai, J. When the appeal came before us on 17-8-1967, we passed the order directing the respondents to file a counter-affidavit and the appellants to file a re-joinder if necessary. In pursuance to our order, the respondents as well as the appellants have filed counter and reply am davits.
11. It has to be mentioned at this stage that since the Government has abandoned the acquisition proceedings in respect of 1 acre 78 cents based on Exts. P-3 and P-4 it is not necessary to consider the grounds raised by the appellants impeaching the same. No question of quashing Exts. P-3 and P-4 therefore arises for consideration. It is enough to record that the Government has ordered G.O. (Rt.) 1504/64/RD dated 8-9-1964 that 76 cents of land out of 1 acre 78 cents mentioned in Ext. P-4 alone need be acquired and the Government has abandoned the idea of implementing Ext. P-4.
12. The learned counsel for the appellants challenged the validity of Exts. P-7 and P-10 on the following grounds: (1) The view of the learned Judge that the area of acquisition in Ext. P-4 was reduced on the representation of the appellants is not correct. (2) The issue of Ext. P-7, subsequent to the withdrawal notification without conforming to the requirements of Sections 3 and 6 of the Kerala Act is illegal, incompetent and without jurisdiction. (3) In view of the repeal of the Cochin Act by the Kerala Act, proceedings started under the former cannot be continued under the lat-ter and therefore Ext. P-7 and the proceedings based thereon are illegal. (4) The proceedings based on Ext. P-7 are mala fide and they constitute a fraudulent exercise of power under the Kerala Act.
13. Point No. 1.--Ext. P-10 was relied on by the learned Judge to show that the area mentioned in Ext. P-1 was reduced at the request of the appellants, Ext. P-10 is the order issued by the respondents on 4-3-1966 in reply to the petition of the first appellant dated 22-2-1966. It is seen there from that in the petition dated 20-6-1962 filed by him before the Minister tor Harijan Welfare and in his letter of the same date to the Revenue Divisional Officer, For Cochin, his contention was that the acquisition proceedings based on Exts. P-3 and P-4 are illegal and the proceedings started under the Cochin Act cannot be continued under the Kerala Act. It is therefore not correct to say that a request was made by the appellants either to the Government or to the Revenue Divisional Officer to reduce the area of acquisition in Ext. P-4 from 1 acre 78 cents to 76 cents of land.
Ext. P-5 is the copy of the petition dated 20-6-1962 filed before the Minister for Harijan Welfare. It is stated therein that instead of the property proposed to be acquired under Ext. P-4 the appellants were prepared to give properties belonging to them in Edavanakaa village for the purpose mentioned in Ext. P-3. In these circumstances, we are of the view that Ext. P-10 cannot in any way affect the right of the appellants to seek to quash the orders and notices mentioned in the petition.
14. Point No. 2.--Ext. P-3 notification is dated 26-6-1959 and it was published in the Kerala Gazette dated 14th of July 1959. The declaration of the intended acquisition under Section 5 (1) of the Cochin Act is dated 23-1-1962 and was published in the Kerala Gazette of 20-3-1962. The Kerala Act came into force on 1-4-1963. The order of the Government that 76 cents of land from the proposed area need alone be acquired is dated 8-9-1954. The notification of the Government withdrawing an area of 1 acre 2 cents covered by Ext. P-4 is dated 20-3-1965 and was published in the Kerala Gazette on 30-3-1965. The with drawal notification is purported to be under Section 52 of the Kerala Act reading as follows:--
"Completion of Requisition not compulsory, but compensation to be awarded when not completed-
(1) Except in the case provided for in Section 38, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
(2) Whenever the Government withdraw from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so lar as may be, to the determination of the compensation payable under this section."
The above provision corresponds to Sec-tion 47 of the Cochin Act and Section 48 of the Land Acquisition Act (1894). The submission of the learned counsel for the appellants was that the effect of the Government Order dated 8-9-1964 and the withdrawal notification is to hold that the public purpose referred to in Ext. P~3 and the notification issued under Section 5 (1) of the Cochin Act is no longer in existence and that the acquisition of 1 acre 78 cents of land is not necessary for that purpose. The further submission of the learned counsel was that the legal effect of the withdrawal notification is to withdraw the notification issued under Section 5(1) of the Cochin Act and thereafter it will not be permissible tor the Government to acquire the extent of 76 cents even though it forms part of land scheduled to the notification issued under Section 5 (1) of the Cochin Act without conforming to the provisions of Sections 4 and 6 of the Kerala Act. It was also pointed out on behalf of the appellant that even if proceedings started under the Cochin Act can be continued after its repeal by the Kerala Act they cannot be withdrawn in part under the Kerala Act and even if it is possible in view of the order of 8-9-1964 passed by the Government, the entire proceedings have to be deemed as abandoned.
Before considering these contentions it is necessary for us to state generally about the scheme and scope of Sections 4, 5-A, 6 and 48 of the Land Acquisition Act, 1894 (corresponding to Sections 3, 4-A, 5 and 41 of the Cochin Act and Sections 3, 5, 6 and 52 of the Kerala Act). The principles underlying these provisions have been considered in a recent decision of the Supreme Court reported in State of M. P. v. Vishnu Prasad, AIR 1966 SC 1593. The facts in that case are that a notification was issued under Section 4 (1) of the Central Act by which it was declared that lands in eleven villages including village Chhawani was likely to be needed for a public purpose. Thereafter properties situated in those villages including the village Chhawani were acquired on the basis of a number of notifications issued under Section 6 of the Central Act. The Government declared its in-tention to acquire further portions of land specified from village Chhawani by issuing a notification under Section 6 of the Cen-tral Act on 12-8-1960. The validity of the latter notification was questioned and the principal contention advanced was that the notification impeached was void as it has not been preceded by a tresh notification under Section 4 (1) of the Central Act and the notification issued in 1949 had exhausted itself by the issue of prior notifications under Section 6 and the notification under Section 4 (1) could not, therefore, support the issue of notification impeached in the proceedings.
In considering the contention of Wanchoo, J., with whom Mudholkar J., agreed, stated thus:
"There is nothing in Sections 4, 5-A and 6 to suggest that Section 4 (1) is a kind of reservoir from which the Government may from time to time draw out land and make declarations with respect to it successively. If that was the intention behind Sections 4, 5-A and 6 we would have found some indication of it in the language used therein. But as we read these three sections together we can only find that the scheme is that Section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government what particular land out of that locality it needs. This is followed by a declaration under Section 6 specifying the particular land needed and that in our opinion completes the process and the notification under Section 4 (1) cannot be further used thereafter At the stage of Section 4, the land is not particularised but only the locality is mentioned, at the stage of Section 6 the land in the locality is particularised and thereafter it seems to us that the notification under Section 4 (1) having served its purpose, exhausts itself, The sequence of events from a notification ot the intention to acquire (S. 4(1)) to the declaration under Section 6 unmistakably leads one to the reasonable conclusion that when once a declaration under Section 6 particularising the area out of the area in the locality specified in the notification under Section 4 (1) is issued, the remaining non-particularised area stands automatically released. In effect the scheme of these three sections is that there should be first a notification under Section 4 (1) followed by one notification undei Section 6 after the Government has made up its mind which land out of the locality it requires.
It is urged however that where the land is required for a small project and the area is not large the Government may be able to make up its mind once for all what land it needs, but where, as in the present case, land is required for a large project requiring a large area of land Government may not be able to make up its mind all at once. Even if it be so there is nothing to prevent the Government from issuing another notification under Section 4 followed by a notification under Section 6. As we have said before, the Government's power to acquire land in a particular locality is not exhausted by issuing one notification under Section 1 (1) followed by a notification under Section 6. The interpretation which has commended itself to us therefore does not deprive the. Government of the power to acquire more land from the same locality if later on it thinks that more land than what has been declared under Sec 6 is needed. It can proceed to do so by a fresh notification under Section 4 (1) and a fresh declaration under Section 6. Such a procedure would in our opinion be fair to all concerned; it will be fair to Government where the prices have fallen and it will be fair to those whose land is being acquired where the prices have risen".
In the above decision their Lordships further considered the extent of the power of the Government in cancelling the notifications issued under Section 4 (1) of the Central Act. Their Lordships observed thus:
"In the first place, under Section 21 of the General Clauses Act (No. 10 of 1897), the power to issue a notification includes the power to rescind it. Therefore, it is always Open to Government to rescind a notification under Section 4 01 under Section 6, and withdrawal under Section 48 (1) is not the only way in which a notification under Section 4 or Section 6 can be brought to an end. Section 48 (1) confers a special power on Government of withdrawal from acquisition without cancelling the notifications undei Sections 4 and 6, provided it has not taken possession of the land covered by the notification under Section 6. In such circumstances the Govern-ment has to give compensation under Section 48 (2).
* * * The argument that Section 48 (1) is the only method in which the Government can withdraw from the acquisition has, therefore, no force because the Government can always cancel the notifications under Sections 4 and 6 by virtue of its power under Section 21 of the General Clauses Act and this power can be exercised before the Government directs the Collector to take action under Section 7. Section 48 (1) is a special provision for those cases where proceedings for acquisition have gone beyond the stage of the issue of notice under Section 9 (1) and it provides for payment of compensation under Section 48 (2) read with Section 48 (3). We cannot, therefore, accept the argument that without an order under Section 48 (1) the notification under Section 4 must remain outstanding. It can be cancelled at any time by Government under Section 21 of the General Clauses Act and what Section 48 (1) shows is that once Government has taken possession it cannot with-draw from the acquisition. Before that it may cancel the notifications under Sections 4 and 6 or it may withdraw from the acquisition under Section 48 (1). If no notice has been issued under Section 9 (1) all that the Government has to do is to pay for the damage caused as provided in Section 5; if on the other hand a notice has been issued under Section 9 (1), damage has also to be paid in accordance with the provisions of Section 18 (2) and (3). Section 18 (1), therefore is of no assistance to the appellant for showing that successive declarations under Section 6 can be made with respect to land in the locality specified in the notification under Section 4 (1)."
Sarkar, J., points out in the above decision that the Land Acquisition Act "is an expro-prietory Act, that interpretation of it should be accepted which puts the least burden on the expropriated owner."
15. The above principles were relied on by the learned counsel for the appellants in support of his contentions. In the case before us the declaration under Section 5 (1) of the Cochin Act was in respect of 1 acre 78 cents. Notices under Sections 8 (3) and 9 of the Cochin Act were also issued. There is no cancellation of the notifications issued under Sections 3 (1) and 5 of the Cochin Act. The withdrawal notification is in these terms:
"Revenue (M) Department Withdrawal Notification No. G. R. Rt. 526/65/RD. Dated, Trivandrum, 20th March, 1965.
Under Section 52 (1) of the Kerala Land Acquisition Act, 1962 (Act 21 of 1962) the Government of Kerala hereby withdraw from Acquisition of the land mentioned in the schedule hereto attached in respect of which steps have been taken for the Acquisition under Notification No. G. O. Rt. 2475/ 59 D/-25-6-59 and published in the Kerala Gazette dated 14-7-59 at 1576 page and declaration No. G. O. Rt. 121/62/Rev. dated 23-1-1962 published in the Kerala Gazette dated 20-3-62 on page 721"
16. The question raised before us is whether it is Open to the Government in exercise of its power under Section 52 (1) of the Kerala Act to withdraw the acquisition in respect of a portion of the land comprised in the declaration tinder Section 5 of the Cochin Act. We are of the view that the scheme of the Land Acquisition Act is such that it is not possible for the Government to withdraw from the acquisition A portion of the land scheduled to the declaration of the intended acquisition.
17. The learned counsel appearing for the State contended that the words 'any land in Section 52 (1) of the Kerala Act must be read to include any part of the land' in respect of which a declaration has been made or even notices under Section 9 of the Kerala Act have been issued. No decision was placed before us by the learned counsel who appeared for the State to support his contention.
18. It is seen from the withdrawal notification dated 20-3-1965 that the area of 1 acre 2 cents withdrawn and the area of 76 cents to be acquired have not been demarcated and plotted out. The public purpose mentioned in the declaration of acquisition is for establishing a Harijan colony in Pallippuram Village. The reason for confining the acquisition to 76 cents though not stated in the withdrawal notification is according to the affidavits of the respondents, based on the decision of the Government to provide housing only for the twentyfour fisherman families who trespassed on the appellants' land.
Assuming it to be a public purpose the said purpose is different from the one stated in Ext. P-3 and in the declaration. If the interpretation canvassed for on behalf of the respondents is accepted there is no Opportunity for the appellants to raise their objections to the acquisition of 78 cents alone. The fact that they did not file any objection to the acquisition of 1 acre 78 cents shown in Ext. P-3 and no enquiry was conducted under Section 4-A of the Cochin Act is not sufficient to establish that they cannot have any objection to the acquisition of 76 cents. The submission of the learned counsel for the appellants was that the result of dropping the proceedings in respect of 1 acre 2 cents amounts to a decision on the part of the State that the public purpose mentioned in Ext. P-3 and the declaration is no more in existence and if the Government is now allowed to implement Ext. P-7, it will be an acquisition by the State of a portion of the property for a different alleged public purpose without conforming to the statute. There is considerable force in the contention advanced on behalf of the appellants.
As was pointed out in AIR 1966 SC 1593, the Land Acquisition Act being an expro-prietory measure it has to be interpreted in such a way as will avoid hardship to the owner of the land and the State. We are therefore of the view that a reasonable interpretation of Section 52 (1) of the Kerala Act is only to hold that it is not open to the Government to withdraw from the acquisition any part of the land scheduled to the declaration.
19. Even the acceptance of the contention of the respondent will not entitle them to implement Ext. P-7. The property measuring 76 cents scheduled to Ext. P-7 has not been demarcated and identified. In Ext. P-3 and the declaration the properties are described as comprised in Section No. 638/4 measuring 1 acre 34 cents and in S. No 665/7 measuring 44 cents in Pallipuram Village. The withdrawal notification describes the portion of the property withdrawn from the acquisition thus :
Cents Sq. links "1. 638/4 (part) (688/8.... wet) 77 880 2. 665/7 (part) (665/2....)* 34 120"
Ext. P-7 describes property as comprised in S. No. 688/4 measuring 56.120 cents and in S. No. 665/7 measuring 19.990 cents. It is thus seen that the portion of the land withdrawn from the acquisition and the portion of the land in Ext. P-7 have not yet been divided and separated from each other. Such a kind of withdrawal of any land from the acquisition is not contemplated by the Land Acquisition Act and it is against the very scheme of the Land Acquisition Act which provides for the acquisition of definite portions of land. Ext. P-7 has therefore to be quashed on the ground that the properties to be acquired have not been plotted out and identified.
20. The result of the above discussion will be to quash Ext. P-7 and Ext. P-10. Incidentally a question may arise that if Ext. P-7 is quashed, whether it will not be Open to the Government to implement Ext. P-4. This will not be possible in view of the order dated 8-9-1964 passed by the Government. It was urged on behalf of the appellants that Ext. P-7 has to be quashed because of the time lag between Exts. P-3 and P-7, which has operated in an oppressive manner against the appellants.
The learned counsel relied on the decision of the Supreme Court in AIR 1966 SC 1593, where their Lordships observed thus :
"It is not in dispute that it is open to the appropriate Government to issue as many notifications as it deems fit under Sec, 4 (1) even with respect to the same locality followed by a proper notification under Section 6 so that the power of the appropriate Government to acquire land in any locality is not exhausted by the issue of one notification under Section 4 (1) with respect to that locality. On the other hand as the compensation has to be determined with reference to the date of the notification under Section 4 (1) the person whose land is to be acquired may stand to lose if there is a great delay between the notification under Section 4 (1) and the notification under Section 6 in case prices have risen in the meantime. This delay is likely to be greater if successive notifications under Section 6 can be issued with respect to land comprised in the notification under Section 4 with greater consequential loss to the person whose land is being acquired if prices have risen in the meantime. It is however urged that prices may fall and in that case the person whose land is being acquired will stand to gain. But as it is open to the appropriate Government to issue another notification under Section 4 with respect to the same locality after one such notification is executed by the issue of a notification under Section 6, it may proceed to do so where it feels that prices have fallen and more land in that locality is needed and thus take advantage of the fall in prices in the matter of acquisition. So it is clear that there is likely to be prejudice to the owner of the land if the interpretation urged on behalf of the appellant is accepted while there will be no prejudice to the Government if it is rejected for it can always issue a fresh notification under Section 4 (I) after the previous one is exhausted in case prices have fallen".
The above observations were no doubt made in a different context. But it is an authority for the proposition that if on account of the time lag between the two notifications any prejudice has been caused to the land owner it can be taken into account in favour of the owner We can take judicial notice of the steep rise in price of properties between 1959 and 1962 and between 1962 and the date of Ext. P-7. Thus this is also a circumstance in favour of the appellants. In the above view, it is not necessary to consider the other points raised on behalf of the appellants.
21. We therefore set aside the decision of the learned Judge and allow the appeal and quash Exts. P-7 and P-10. It is brought to our notice that on the date of the filing of the petition under Article 226 of the Constitution the appellants were not aware of the passing of the award and therefore they did not pray for quashing the award. The appellants were served with the notice of the passing of the award under Section 12 (2) of the Kerala Act only after the filing of the petition. In view of the passing of the award the quashing of Exts. P-7 and P-10 cannot give any relief to the appellants, Since the entire records are before us, we quash the award also. The appeal is thus allowed, but we make no order as to costs.