Abdulla Kutti Haji vs State of Kerala and Others

Velu Pillai, J.—This petition is under Article 226 of the Constitution to quash certain proceedings taken under the Land Acquisition Act, 1894 which may be referred to as the Act. The first point urged before me was, that Government did not form an opinion as to the applicability of Section 17(1) or Section 17(2) of the Act to the case, before the enquiry u/s 5-A was dispensed with, in exercise of the power u/s 17(4) of the Act. The material part of the order only reads:

Under sub-section (4) of Section 17 of the Act, the Government of Kerala direct, that in view of the urgency of the case, the provisions of Section 5A of the Act shall not apply to this case.

A similar objection was taken on behalf of the petitioner in Madhavi Amma v Revenue Divisional Officer, Kozhikode (1960 KLJ 613) and was upheld by me, sitting as a single Judge, but there, the point was taken at least in a general form, as noted by me in paragraph 3 of my judgment. The learned counsel appearing for the petitioner invited my attention to the several grounds raised in the petition, but I am not satisfied, that any of these is sufficient to cover the point. I uphold this preliminary objection of the learned Government pleader, that the respondent had no opportunity to meet the objection in the counter-affidavit.

The second point was, that whereas the declaration u/s 6 of the Act could be made only after the publication of the notification u/s 4, as it happened, both were made on November, 3, 1958, and were published on November 25, 1958. Though here again, the point is not as specific as it could be, ground 6 of the petition may be held to cover it. The latter part of Section 17(4) of the Act provides that:

A declaration may be made u/s 6 in respect of the land at any time after the publication of the notification u/s 4, sub-section (1).

It may be taken, that there was a violation of this provision, but the question really is whether the land acquisition proceedings ought to be quashed on that ground. Once Section 5-A proceedings have been validly dispensed with, the owner of the property intended to be acquired has no right in him to intervene and say, that no declaration u/s 6 ought to be made. As observed by a Division Bench of the Mysore High Court in Abdul Azeez v The State (AIR 1957 Mys 12):

When the Legislature took away the right of the party to file objections u/s 5A by means of Section 17(4), there is no meaning or substance in saying that the Legislature intended to give an opportunity to the party by providing an interval between the publication of the notice u/s 4 (1) and the declaration u/s 6, Land Acquisition Act. That could not have been the intention of the Legislature.

According to that Court, this interval was provided only to enable the Government, if it becomes necessary, to consider the matter further. But this is not to say, that the party has a right to make a motion or that his right is affected. The learned counsel contended that the above prescription in Section 17(4) is jurisdictional, but I fail to see how it can be treated so; it is not every provision in the Act that is mandatory or jurisdictional.

The learned counsel argued, that in the case cited, the Court did not notice the distinction between the making of the declaration and its publication. True, Section 17(4) employs the word ''made'' in the expression ''a declaration may be made'' and Section 6 refers to ''making'' and ''publication''. In my opinion, the distinction cannot be considered to be vital the declaration being conclusive only upon the publication thereof. In the context in which the word ''made'' is employed in Section 17(4), it seems to me, that it must be interpreted as to include the publication of the declaration also. In any view, I am not satisfied, that the above provision in Section 17(4) of the Act is mandatory. I therefore come to the conclusion, that the principle of the Mysore decision applies, and if so, it must follow, that non-compliance with the latter part of Section 17(4) is only an irregularity, on the strength of which the proceedings could not be quashed. The learned counsel also attempted to raise another point that the land acquired is not waste or arable land within the meaning of Section 17(1) of the Act; but this does not arise, in view of the provisions of Section 17(2) of the Act, which enable the Collector to take immediate possession of any land whatever, for the construction, extension or improvement of any road. The petition is therefore dismissed, but I make no order as to costs.