Achan Bava Varkey and others vs The State of Kerala and others

There are eight appellants in this appeal. All of them along with 9 others fought the cancellation of notification issued u/s 3 of the Kerala Land Acquisition Act ''61 which have been produced as Ex. P.2 series in O.P. No. l119 of 1966 as well as declarations issued u/s 6 of that Act which were produced as Ex. P.3 series in the said original petition. A notice Ex. P.4 in the original petition was also sought to e cancelled. Various points were urged before the learned Judge and negativing those contentions, the original petition was dismissed by the Judgment appealed against. Though the points raised before the learned Judge have also been taken before us in this appeal, we consider it unnecessary to deal with all those points for we are of the view that the declarations Exs. P.3 series and the order of the Collector No. D4-1237/66 dated 14-2-1966 referred to in the Declaration as well as the notice u/s 9 Ex. P-4 must be set aside on the short ground that Section 3 of the Kerala Land Acquisition Act has not been complied with before the order of the Collector dated 14-2-1966 was passed, declaration u/s 6 and notices u/s 9, issued.

Section 3 of the Act is in these terms:

Publication of preliminary notification and powers of officers thereupon. -

(1) Whenever it appears to the Government or to the Collector that land in any locality within the State of Kerala or within the jurisdiction of the Collector, as the case may be, is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.

(2) Thereupon, it shall be lawful for any officer, either generally or specially authorized by the Government or the Collector and for his servants and workmen,-

(a) to enter upon and survey and take levels of any land in such locality;

(b) to dig or bore into the sub-soil;

(c) to set out the boundaries of the land proposed to be taken and the intended line of the work, if any, proposed to be made thereon;

(d) to mark such Levels, boundaries and line by placing-marks and cutting trenches;

(e) where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; and

(f) to do all other acts necessary to ascertain whether the land is adopted for such purpose:

Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier) at least seven days'' notice in writing of his intention to do so.

From the wording of the Section it is clear that apart from the publication of the notification in the Gazette, the Collector should also cause public notice of the substance of such notification to be given at convenient places in the locality. The section is imperative in terms and there are no reasons why ''shall'' in the section should be read as ''may''. It is unnecessary labor the point further for a similar section has been construed by the Supreme Court in the decision in Khub Chard and others v State of Rajasthan and others reported in 1967 S.C. 1074 and it has been laid down that public notice of the substance of the notification is a condition precedent of proceedings being taken for the acquisition of the land.

In the original petition it is specifically averred that no notices as contemplated by the section have been published. Apart from the provision in Section 3, Rule 3 of the Rules (Kerala Land Acquisition Rules 1963) framed under the Act also insists that notice should be published at convenient places in the locality. The averment in the original petition that there has been no such notice has not only not been denied but it is admitted in the counter affidavit filed on behalf of the 1st respondent in paragraph 7 that there have been no such notice. Though this is sought to be justified on the grounds mentioned in the affidavit, the fact remains that then were no notices.

In the light of the ruling of the Supreme Court, we think this omission invalidates all subsequent proceedings.

Counsel for the respondents suggested that in cases of emergency when orders have been passed by the Collector and the enquiry u/s 5 dispensed with there is no significance in the notice contemplated by Section 3 of the Act and Rule 3 of the Kerala Land Acquisition Rules, 1963, and it serves no purpose whatever in those circumstances. It is further urged the section and the rules cannot be construed as imperative when enquiry u/s 5 has been dispensed with. We are unable to accept this contention. The necessity for the notice u/s 3 has been pointed out in the Supreme Court judgment referred to and the purpose of the notice has nothing to do with the existence of the emergency or not.

In the view we have taken, we have to quash the declaration Ex. P.3 series as well as the order passed by the Collector No.D4-l 237/66 dated 14-2-1966 and the notice u/s 9, Ex. P.4. We do so.

Counsel for the appellants has further urged that Ex. P.2 series, notifications published in the Gazette pursuant to Section 3 of the Act must also be quashed for the notifications are vague and spell malafides in the sense that there was no application of the mind to the questions involved. These arguments are advanced on the basis of the wording of the notification. The relevant part of the notification states:

And whereas it appears to the said Collector that the lands specified in the schedule below are needed or are likely to be needed for a public purpose....

It is suggested that to combine the two alternatives mentioned in the section is only to copy the wording of the section and not to apply the mind to the question as to whether the land is required for public purpose at the time of the notification of whether it is likely to be required in future. It is no doubt true that there can be malafides in the sense of non-application of the mind to the question involved though there is no evidence of any personal grudge, corrupt motive, or other improper purpose as we said in our judgment in Mammu alias Kunhammad Keyi v Tahasildar and Land Acquisition Officer, Tellicherry reported in 1965.K.L.T. 1081. But we are not convinced that we are at this stage called upon to pronounce on this matter. This is a matter which should be considered by the authorities concerned before continuing proceedings commenced by Ex. P.2 series notifications. If the notifications have any infirmity it will of course be open to the authorities to issue fresh notifications. We express no opinion on the question whether the notifications issued suffers from very infirmity or not.

This writ appeal is allowed as above. There will be no order as to costs.