Abraham
Mathal Vs. Sub-Collector (Land Acq. Officer) & Ors [1990] INSC 214 (27 July 1990)
Ray,
B.C. (J) Ray, B.C. (J) Ahmadi, A.M. (J)
CITATION:
1990 SCR (3) 535 1990 SCC (4) 136 JT 1990 (3) 337 1990 SCALE (2)159
ACT:
Kerala
Land Acquisition Act, 1961--Kerala Land Acquisi- tion Rules 1963--Section
6/Rules 5(b)(6) and 6--Land requi- sitioned at the instance of private
school--Whether officer of the Department to be heard on objections by the
owner.
HEAD NOTE:
The
appellant owned land hearing R.S. Nos. 44/11 and 44/20 in village Thottapuzhasseri
in Kerala State. Respond- ent 3, M.M.A. High School moved an application under Sub-
clauses (a) and (b) of Clause (i) of Section 1 of Chapter 6 of the Land
Acquisition Manual before the State's Education Department praying that the
aforesaid land be requisitioned for a public purpose for construction of a
playground for the school. The State authorities after complying with the
requirements of the Kerala Land Acquisition Act, 1961, issued a declaration
under Section 6 of the Act stating the lands described therein were needed for
a public purpose viz. construction of a playground for the school. The appel- lant
challenged the validity of the declaration by filing a writ petition before the
High Court, contending, that (i) the proposal to acquire the property was mala
fide; (ii) that the declaration was bad as no notice was issued to the
Education Department as required by Rule 5(b) and (c) of the Kerala Land
Acquisition Rules and (iii) that the appellant needed the property for
construction of houses for his sons.
The
High Court dismissed the writ petition holding that there was no violation of
the provisions of Rule 5(b) and (c) of the Rules nor was there any infringement
of Rule 6.
Hence
this appeal by the appellant by certificate.
Dismissing
the appeal, this Court,
HELD:
The requisition in the instant case, was not made at the instance of the
Government Department but at the instance of the Manager, private school and
the Education Department merely has given a note certifying that the purpose of
the requisition is a public purpose and that the school agreed to bear the
entire costs. [544C-D] It cannot therefore be contended that the requisition
has been made by the Education Department or by its officer for acquisition of
the land in question. [541C] 536 The High Court has rightly held that there has
been no violation of Rule 5(b) and (c) or 6 of the Rules. [541F] That it is
inappropriate to issue notice to the Education Officer or Departmental Officer
who certified about the public purpose as well as readiness of the school
authority to pay the entire money for acquisition and failure to issue such a
notice to the Departmental Officer would not amount to violation of the
principles of natural justice and in- fringement of the said Rule 5(b) and (c)
of the said Rules.
[541
F-G] Lonappan v. Sub-Collector, Palghat, AIR 1959 Kerala 343;
State
of Madras and Ors. v. Periakkal and Ors., AIR
1974 Madras 383 and State of Mysore and Ors. v. V.K. Kangan and Ors.,
[1976] 1 SCR 369 at 371, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 186 of 1976.
Appeal
by Certificate from the Judgment and Order dated 27.10.1975 of the Kerala High
Court in O .P. No. 3743 of 1973.
Ajit Pudussery
and B .P. Singh for the Appellant.
A.S. Nambiar,
K.R. Nambiar, V.J. Francis and N.M. Popli for the Respondents.
The
Judgment of the Court was delivered by RAY, J. The appellant who is owner of
land comprised in R.S. Nos. 44/11 and 44/20 in village Thottapuzhasseri in Alleppey
District, assailed the validity of the declaration made under Section 6 of the Kerala
Land Acquisition Act, 1961 (Act 21 of 1962) made by the 2nd Respondent, Board
of Revenue, Kerala State on 25.9.1973 and published in Kerala Gazette dated
October 16, 1973 stating that the lands de- scribed therein are needed for a
public purpose namely for a playground for M.M.A. High School and directing the
Revenue Divisional Officer, Changannur to order for acquisition of the same.
The
grounds on which the challenge was made in the writ petition inter alia were
that the property in question was mortgaged with the Maramon Marthomite Church,
as the Church refused to return the property on accepting the money, the
appellant filed a suit for redemption of the mortgage which was ultimately
decreed and appellant got 537 possession of the property on October 8, 1973.
During the pendency of the suit the church authority moved the educa- tional
authorities as well as the Sub-Collector for acquisi- tion of the property for
the school in order to wreak ven- geance on the petitioner-appellant. It has
also been alleged that the purported proposal to acquire the said property was
made mala fide. The land was situated about 3 furlongs away from the school and
it was not convenient to be used as playground of the school, that there were
more suitable land available for purpose of playground, that the land was
required by the owner for purpose of constructing buildings for his sons. The
appellant raised all those objections within the prescribed time on receiving
notice under section 5 of the said Act. No notice was issued to the Education
Department as required under Rule 5(b) & (c) of the Kerala Land Acquisition
Rules and the objection made by the appel- lant was decided by the respondents
without hearing the Government Department or its representative. As such the
impugned declaration is illegal and bad and the proceeding for acquisition is
also illegal and unwarranted. The writ petition being O.P. No. 3743 of 1973 was
dismissed by the High Court holding that there was no violation of the provi- sions
of Rule 5(b) & (c) of said Rules nor there was in- fringement of Rule 6.
The
instant appeal is on a certificate granted by the High Court under Section
133(1) of the Constitution of India.
The sole
question that has been agitated before this Court by the learned counsel for
the appellant is that provisions of Rule 5(b) & (c) of Kerala Land
Acquisition Rules, 1963 are mandatory and the notice of the date of hearing of
objection filed by a person interested in the land has to be given to the
Departmental Officer requiring the land and failure to serve such notice will
invalidate the declaration made under Section 6 of the Kerala Land Acquisition
Act, 1961 in short the said Act. Several deci- sions have been cited at the Bar
in support of this conten- tion. The provisions of Section 5 read with Rule
5(b) & (c) of the said Rule have not been complied with in hearing
objections.
The
learned counsel for the respondent has, on other hand, submitted that the
proposal for acquisition of the land in question for play-ground of the said
school was made at the instance of the Manager of the School, the 3rd re- spondent.
The said proposal was considered by the Education Department which certified
that the acquisition was for a public purpose viz for playground of the said
school and also that the school agreed to place the necessary funds for payment
of compensation for acquisition of the said land.
538
The appellant on receiving the notice under Section 3 of the said Act filed an
objection to the proposed acquisition of the said lands in accordance with the
provision of Sec- tion 5 of the said Act as well as under Rule 3 of the Land
Acquisition Rules, 1963. The 1st respondent did not issue any notice of the
objection filed by the appellant (peti- tioner) to the Education Department as
required under Sec- tion 5 of the Act and Rule 5(b) & (c) and 6 of the
Rules framed under the said Act though notice was issued to Re- spondent No. 3,
the Manager, M.M.A. High School, Maramon.
The
1st respondent, Sub-Collector (Land Acquisition Officer) after hearing the
petitioner-appellant and his lawyer as well as the representation of the 3rd
respondent submitted a report to the respondent No. 2, Board of Revenue, Kerala State recommending for the acquisition of the said land for the
purpose of playground for the said High School. The Board of Revenue, the
respondent No. 2, after considering the report made a declaration under Section
6 of the said Act stating that the land specified in the notification under
Section 3 of the Act is needed for a public purpose and the said declaration
was published in the Kerala Gazette dated 16th October, 1973 and directed the
Revenue Divisional Officer, Changannur to take order for acquisition of the
lands. It is convenient to mention that the procedure for requisition for
acquiring land has been laid down by the Government in the Land Acquisition
Manual. Sub-Clauses (a) & (b) of Clause (i) of Section 1 of Chapter 6 of
the Manual is in these terms:
"(i)(a)
Application in all cases in which land is required by a department of
Government other than the Revenue Depart- ment should be sent by the
Departmental Officer authorised in this behalf in the prescribed form (Form
2Appendix II) to the District Collector or to the Special Land Acquisition
Officer, if any, appointed for the purpose. In the applica- tion it should be
specifically stated whether the sanction of the competent authority exists for
the work for which the land is required and for the acquisition of the land and
whether necessary funds have been provided in the budget for meeting the cost
of acquisition.
(b)
Application from associations or private institutions other than educational institutions,
should be sent in the prescribed form to the District Collector. When land is
required by a private educational institution, the Manager of the institution
should send an application in the pre- scribed form to the District Educational
Officer concerned 539 who will forward it to the District Collector with a certif-
icate from the departmental officer authorised in this be- half, to the effect
that the acquisition is necessary as the land is required for a public purpose
and that the private educational agency has agreed to meet the expenditure It
is evident from this procedure that in case of land being required by the
private educational institution. the Manager of the institution shall send the
application for acquisition of the land, The Education Department has to
consider the application and to give a certificate to the effect that there was
a public purpose for which the pro- posed acquisition is asked for and the
private educational institution is agreeable to meet the entire expenditure for
acquisition of the said property. In the instant case Educa- tion Department
after considering the requisition made by the Manager of the said school
certified about the public purpose for which the land in question is required
to be acquired and also that the school authority is ready and willing to meet
the entire costs of the acquisition. As has been stated hereinbefore that the
appellant, the owner of the said plots of land submitted his objection to the appli-
cation for acquisition mainly on four grounds inter alia that the proposal for
acquisition of the land has been made by the Manager of the said school malafide
in as much as the said land was mortgaged previously with the Church authori-
ties and subsequently the mortgage was redeemed on the basis of a decree passed
by the court in a suit and the said land was taken possession of by the
applicant in execution of the said decree. Secondly, this land is situated
about 3 furlongs away from the said school and so it is not conven- ient to use
the land for a play-ground of the school, third- ly, there are other lands
available in the locality which can be conveniently used for this purpose,
fourthly, it has been stated in the objection petition that the land in
question remains submerged during certain part of the year and so the same is
not convenient for the purpose of play- ground of the school. The 3rd
respondent on receiving notice of the objections appeared before the
Sub-Collector. Re- spondent No. 1 and reiterated that the objections are all
without any basis and the land was needed for the playground of' the school and
the said land is being used for this purpose for a period of about10 years. The
respondent No. 1 after inspecting the site and after considering the objec- tions
and hearing the appellant and his lawyer submitted a report recommending for
acquisition of the said land. It will be evident from the inquiry report made
under Section 3 of the said Act that the lands is in possession of the School
and it is being used as its playground for the last 10 years. The Management of
the said School has no other alternative but to request 540 for acquisition of
the said land for the above purpose. it is also staled in the report that the
proposed land is at a distance of 3 furlongs and there is no other convenient
and suitable land more nearer to the school.
On
considering this report the respondent No. 2, Board of Revenue made a
declaration which has been notified in the Kerala Gazette on October 16, 1973
and directed proceeding for acquisition of the said land.
It is,
therefore, clear that the Manager of the school submitted a requisition to the
Education Department for a certificate as to the public purpose for acquisition
of the said land for play-ground o[ the school and also to the effect that the
school has agreed to meet the entire expend- iture in due compliance with the
procedure laid down in the Kerala Land Acquisition Manual. The Education
Department made the necessary recommendations. The proposal tot the acquisition
of the plot was made at the instance of the Manager of the said private
educational institution the respondent No. 3 and not by the Education
Department. Sec- tion 5 enjoins that any person interested in any land which
has been notified under sub-clause 1 of Section 3 as being needed or likely to
be needed for a public purpose may, within 30 days after publication of the
notification, object to the acquisition of the land. It has been further
provided therein that objections shall be made to the Collector in writing and
the Collector on receiving the objections shall give the objector an
opportunity of being heard either in person or by counsel and shall after
hearing all such objec- tions and after making such further enquiry, if any, as
he thinks necessary either made a report in respect of the land which has been
notified under Sub-Section 1 of Section 3 or make different reports in respect
of different parcels of such land to the Board of Revenue where the
notification under Sub-clause 1 of Section 3 has been made and published by the
Collector. Rule 3 of the Kerala Land Acquisition Rules clearly states that
after publication of the notifica- tion under Section 3, the Collector shall
issue a notice stating that the land is needed or is likely to be needed, as
the case may be, for a public purpose and requiring all persons interested in
the land to lodge before the Collector within 30 days after the issue of the
notification, a state- ment in writing of their objections, if any, to the
proposed acquisition Rule 5(b) enjoins that after receiving the objections from
a person interested in the land within prescribed time the Collector shall fix
a date for hearing the objections and "give notice, thereof to the
objector as well as to the departmental officer or company or the local 541
authority requiring the land, where such department is not the Revenue
Department.
On a
perusal of this provision it is clear that notice of the date of hearing of the
objections has to be served not only on the objector but also to the
Departmental Offi- cer or Company or the local authority requiring the land,
that is, where the requisition for acquisition of the land is made by the
Departmental Officer, the Departmental Offi- cer who requires the land for
acquisition has to be served with a notice of the date of hearing of
objections. In the instant case the requisition was made not by the Education
Department but by the Manager of M.M.A. High School, Mara- mon. The Education
Department merely certified about the requirement of the land in question for a
public purpose i.e. for playground of the school and that the entire cost of
the requisition is agreed to be borne by the school.
The
sole question agitated in regard to the validity of the declaration is that no
notice of the date of hearing of objection has been served on the Education
Department and as such the Education Department has no opportunity to consider
the objections raised by the appellant and also to say whether the land in
question was suitable for-acquisition or whether other lands are available for
this purpose for which the proposed acquisition is required to be made and non-
service of such a notice invalidates the declaration made under Section 6 of
the Act by respondent No. 2. It is only the private school as well as the owner
of the land who are required to be informed as to the date when the objections
will be heard under Section 5 of the said Act and only they are to be heard.
The High Court has rightly held that in the instant case there has been no
violation of Rule 5(b) & (c) of the Rules. The High Court has further held
that there has not been any infringement of Rule 6. It has also been held that
it is inappropriate to issue notice to the Education Officer or Departmental
Officer who certified about the public purpose as well as readiness of the
School authority to pay the entire money for acquisition and failure to issue
such a notice to the Departmental Officer would not amount to violation of the
principles of natural justice and in- fringement of the said Rule 5(b) &
(c) of the said Rules. We have mentioned hereinbefore that the proposal for acquisi-
tion of the land was made by the Manager of the school for the purpose of
playground of the school and the requisition was thus made at the instance of
the school. The Education Department merely certified about the public purpose
and also about the willingness on the part of the school author- ity to bear
the entire cost of acquisition. The land is not sought to be acquired at the
instance of the Depart- 542 mental Officer and as such it has been rightly
found by the High Court that non service of notice of hearing of the date of
objection on the Education Department does not per se infringe the provisions
of Rule 5(b) & (c) of the Kerala Land Acquisition Rule, 1963. We do not
find any flew in the judgment rendered by the High Court.
Several
decisions have been cited at the Bar to impress upon us the point that Rule 5
(b) & (c) read with Section 5 of the said Act are mandatory and
non-compliance therewith will render the declaration invalid and the entire acquisi-
tion proceedings on the basis of the said declaration will be illegal and
unwarranted. In the case of Lonappan v. Sub- Collector, Palghat, AIR 1959 Kerala,
343 one Appu moved the authorities of the Education Department to acquire 1.12
acres of land in R.S. No. 125/7 for the construction of a building and for a
play ground and a garden for his school.
On the
recommendation of the Education Department the Gov- ernment issued a
notification under Section 4(1) of the Land Acquisition Act proposing to
acquire an area 1.12 acres in the said survey for this school. Notice was
issued to the appellant calling for appellant Lonappan, the owner of the land,
for filing objections, if any, under Section 5-A of the Land Acquisition Act to
the proposed acquisition and in that notice it was stated that the enquiry
under Section 5-A would be held on 23.9. 1952. The Sub-Collector after hearing
the appellant and his objections overruled his objections and recommended
acquisition. The appellant thereafter made application under Article 226 of the
Constitution for a writ of certiorari and for other directions for quashing the
proceedings and for granting other reliefs, on the ground that under Section
5-A the Sub-Collector was bound by Rule 3 to give notice of those objections to
the Education Depart- ment at whose instance step for acquisition has been
taken.
It was
held that the object of Rule 3(b) of the Rules made by the Madras Government
under Section 55(1) of the Act for giving notice to the concerned department
before hearing of objections filed under Section 5-A is not merely to give the
department an opportunity to maintain or support its origi- nal requisition but
also to provide an opportunity for the original requisition being reviewed or
reconsidered by the department in the light of the objections raised by the
owner of the land and other persons interested in it.
In
State of Madras and Ors. v. Periakkal and Ors., AIR 1974 Madras 383 the land acquisition
proceedings were start- ed at the instance of the Harijan Welfare Department
for the purpose of constructing houses for the Harijans. Notice of the date of
hearing of the objections filed by the respond- ent, owner of the land was not
given to 543 the Harijans Welfare Department at whose instance the pro- ceedings
for acquisition were initiated under Rule 3(b) of the Rules made under Section
55(i) of the Land Acquisition Act. It was held that under Rule 3(b) it is
incumbent on the Collector to give notice of objection to the department
requiring the land and copies of the objections had to be given to such other
departments. This is for enabling the department to file on or before the date
fixed by the Col- lector a statement by way of answer
to the objections and also depute a representative to attend the enquiry. This
has to be done in order to give an opportunity to the department requiring the
land to traverse the objections, if any, filed by the person interested in the
land, so that in the light of the reply of the department, a decision may be
arrived at for the purpose of making the declaration under Section 6.
It has
been held that the Rule being not mandatory its effect is that in the absence
of service of such notice acquisition proceedings are not invalidated.
In
State of Mysore & Ors. v. V.K. Kangan & Ors., [1976] 1 SCR 369 at 371.
The land was sought to be acquired for an Engineering College at the instance of the Education
Depart- ment of the State of Mysore, Section 4 notification was issued in the
year 1960. After an enquiry into the objec- tions filed under Section 5-A the
Land Acquisition Officer sent his report to the Government. Government
overruled the objections and issued a notification under Section 6. The
Education Department at whose instance the land was sought to be acquired was
not given notice as required by Rule 3(b) of Madras Land Acquisition Rules. The
respondents filed a Writ Petition in the High Court challenging the validity of
both the notifications on the ground that the Education Department was not
consulted. The High Court upheld the contention of the respondents and quashed
the notifications issued under Sections 4 and 6 of the Act on the ground that
if the Department concerned filed any reply pursuant to the notice issued, the
objector would know what the Department has stated by way of reply and at the
stage of hearing of objections, the objector might adduce evidence or address
arguments to meet what is stated in such reply. The objector could further urge
before the Government that the reasons given by the department in reply to the
objections should not be accepted. It was held that Section 5-A requires the
Collector to make a report after hearing the objections. It does not mean that
a rule cannot be framed which would enable the department concerned to place
its view point before the Collector when considering the objection under
Section 5A. The proceedings of the Collector are quasi- judicial and it is only
proper that he should be apprised of the attitude of the department requiring
the land in the light of the objections filed. It would be 544 helpful to the
Government in making the decision to have before it the answer to the objection
by the department in order to appreciate the rival view points. Rule 3(b) is
not ultra vires Section 5A.
It has
been held that Rule 3(b) was enacted for the purpose of enabling the Collector
to have all the relevant materials before him for coming to a conclusion to be incor-
porated in the report to be sent to the Government in order to enable the
Government to make proper decision.
Rule
3(b) is mandatory and non-service of the notice on the Government Department at
whose instance the requisition for acquisition was initiated, the notification
under Sec- tion 6 becomes bad and as such the same was quashed. This decision
is not applicable to the instant case for the simple reason that the
requisition was not made at the instance of the Government Department but at
the instance of the Manager, private school and the Education Department merely
has given a note certifying that the purpose of the requisition is a public
purpose and that the school agreed to bear the entire costs.
In
these circumstances it cannot be contended that the requisition has been made
by the Education Department or by its officer for acquisition of the land in
question. There- fore, in our considered opinion the ruling cited above is not
applicable to the instant case.
In the
premises aforesaid the only conclusion that follows is to dismiss the appeal.
In the facts and circum- stances of the case the parties will bear their own
costs.
Y. Lal
Appeal dismissed.
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