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PETITIONER: ABRAHAM MATHAl

       Vs.

RESPONDENT: SUB-COLLECTOR (LAND ACQ. OFFICER) AND ORS.

DATE OF JUDGMENT27/07/1990

BENCH: RAY, B.C. (J) BENCH: 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.

HEADNOTE:     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

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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.

JUDGMENT:     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

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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

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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.

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   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

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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

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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

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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. 545