Geevarghese vs State of Kerala and Others

M.P. Menon, J.—The Petitioner owns a few acres of land in Survey No. 154 of Mekapala Kara, Vengoor East Village, Kunnathunad Taluk. The adjoining property on the eastern side, also in Survey No. 154, belongs to his brother. In the year 1980, the Petitioner came to know about a proposal to open up a "field channel" through the above items of properties, as part of the distribution system of the Periyar Valley Irrigation Project. According to the Petitioner, such a channel was totally unnecessary for irrigation purposes; the real idea of the authorities was to put up a wide bund fit for vehicular traffic, in order to benefit some influential persons on the eastern side. The proposal was only an excuse for raising such a bund. He therefore came to this Court with O.P. No. 2793/1980, complaining that Sections 12 and 13 of the Irrigation Act were not being complied with. The O.P. was however dismissed, on the view that the aforesaid provisions were not intended to protect owners whose lands were likely to be acquired. Safeguards and protections in the matter of land acquisition were to be found in the provisions of the Land Acquisition Act, it was suggested; and it was indicated that the Petitioner could wait till proceedings were initiated under that Act.

The Petitioner was then expecting to get a notice u/s 3 of the Land Acquisition Act, read with Rule 3 of the Land Acquisition Rules, if the authorities were intending to proceed with the acquisition. But no such notice was served on him. On 8th December 1982, however, the Land Acquisition Officer issued a notice to the Petitioner directing him to surrender 16.45 acres of land. The notice made reference to notifications made in two newspapers in September, 1982, in connection with the acquisition. On enquiries thereafter, the Petitioner came to learn that "some order" had been passed by the District Collector u/s 19(4) of the Act.

The present writ petition is directed against the whole of the acquisition proceedings. It is contended that many of the provisions of the Act have not been complied with. The more formidable contention is against the manner in which the District Collector has exercised power u/s 19(4).

The Special Tahsildar (L.A.) has filed a counter-affidavit, setting out the following facts. He initiated action on receipt of a requisition from the Executive Engineer, P.V.I. Division No. I, for acquiring land required for constructing a field channel from the Peneli Branch canal of the project. Notification u/s 3(1) of the Land Acquisition Act was published in the ''Mathrubhumi'' and ''Malayala Manorama'' on 20th January 1982 and 24th January 1982 respectively. Notice under Rule 3 was taken out to the Petitioner and his brother, but as the Petitioner refused to receive the same, the process-server affixed it on the Petitioner''s dwelling house on 5th February 1982. The District Collector, Ernakulam exercised power u/s 19(4) on 4th January 1982. The draft declaration under Sections 6 of the Act was approved by the Board of Revenue in due course, and the declaration was published in the newspapers in September 1982. Notice under Sections 9(3) was served by affixture on 2nd November 1982, and notification under Sections 9(5) was published on 9th November 1982.

Before proceeding further, I should say that it is difficult to believe the Petitioner''s case that he came to know about the acquisition proceedings only when Ext. P-1, dated 8th December 1982 was served on him. As already seen, he was on the look-out from the very beginning i.e. even before initiation of any proceedings under the Land Acquisition Act. He had come to this Court in 1980 complaining against a possible acquisition, of his land. Section (3) notification was published both in the Mathrubhumi and the Malayala Manorama in January 1982. It cannot be assumed that the Petitioner was keeping himself blissfully ignorant of this development. As disclosed by the counter-affidavit, all the other land owners concerned had surrendered possession of their lands by August 1982. Despite the newspaper publications, and despite the surrender of land by neighbouring owners, if the Petitioner claims to have remained ignorant of all such proceedings, I think the safer course is to believe the case of the Respondents that notice under Rule (3) was attempted to be served on him, and was served by affixture on 5th February 1982.

The more important question, as I said, is about the exercise of power by the District Collector u/s 19(4). Section 19(1) of the Act provides that "in cases of urgency", the District Collector can direct the Land Acquisition Officer to take possession of the land before the passing of the award. And Section 19(4) provides that if the District Collector is of opinion that the land in question is one to which the urgency provisions of Sub-section (1) are applicable, he can direct that the enquiry under Sections 5 be dispensed with. The normal procedure under the Act is to make the preliminary notification u/s 3, hear and decide the objections under Sections 5, make the declaration under Sections 6, give notice to the persons affected under Sections 9, pass the award u/s 11, and then take possession u/s 18. Sub-sections (1) and (4) of Section 19 permit a departure from the above procedure "in case of urgency", when the District Collector forms the opinion that such urgency exists. And when the complaint is against exercise of power u/s 19(4), the scope of scrutiny by the courts is limited to examining whether the Collector has acted honestly and bona fide, with due regard to the materials before him, from which any reasonable person can spell out the existence of urgency. As Govindan Nair, C.J. said in Damodara Menon v. P.A. (L.A.) to District Collector 1975 KLT 537, the question can only be about honest application of the mind by the District Collector:

It is settled law that in view of the wording of Sub-section (4) of Section 19 what is required is the subjective satisfaction of the Government or the District Collector, for the words used are ''in the opinion of the Government or the District Collector''. The satisfaction being a subjective one the scope of enquiry regarding that satisfaction in proceedings before the Court under Article 226 of the Constitution is very very limited. Nevertheless it is equally well established that if there has been no application of the mind to the question of urgency which alone will justify the direction that the provisions of Sections 5 of the Act will not apply, a court will be entitled to set aside the procedure adopted of doing away with the enquiry under Sections 5.

No doubt there are decisions which have taken the view that exercise of power u/s 19(4), followed by lethargy in proceeding with the matter afterwards, may cast a shadow on the bona fides of such exercise. In Kunhammad Keyi v. Tahsildar 1965 KLT 1020, notification u/s 3 was issued on 20th May 1963, emergency powers were invoked on 23rd June 1963, but notice under Sections 9(5) was published only on 21st January 1964; and the Court held that the dates "belie the story of any extreme urgency as the foundation for the action under Sub-section (4) of Section 19." The same approach was made in Damodara Menon''s case 1975 KLT 537 (supra) where the Collector''s direction u/s 19(4) was on 6th December 1973, but the Sections 9 notification was issued only on 22nd August 1974. In Noor Mohammed v. District Collector 1981 KLT 816, Khalid, J. observed that-

The long-felt need'' starting from 1976 which went into hibernation till 1981 can never be projected as sufficient to invoke the provisions contained in Section 19(4) of the Act.

And in State of Punjab and Another Vs. Gurdial Singh and Others, Krishna Iyer, J. said-

Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry u/s 17 of the Act.

In Raman v. District Collector 1967 KLT 552, Gopalan Nambiyar, J. (as he then was) did not agree with the proposition that a delay of more than thirty days in proceeding with the acquisition would necessarily negative the existence of urgency. Relying on observations of the above nature, Mr. Narayana Pillai for the Petitioner contends that the delay in the present case--from January 1982 to November 1982--is sufficiently long to destroy the inference that there was such urgency to proceed with the acquisition as to deprive the landowner of the protection he would otherwise have obtained under Sections 5.

It seems to me that there are two or three aspects which require consideration before such a generalisation can be made with reference to the time element alone. The first is that the decisions noticed were not attempting to lay down any mathematical formula for testing urgency; in fact, the responsibility of deciding whether there is urgency or not is primarily that of the District Collector. It is his opinion that matters and the courts, in the cases cited, were only evaluating the surrounding circumstances to ascertain whether the Collector had acted honestly and bona fide in exercising the statutory discretion.

The second is the extent to which the opinion formed by the District Collector can be tested in the light of the time-consuming steps taken thereafter, in the matter of proceeding with the acquisition. Take a case where a landowner comes to this Court immediately after the direction is made u/s 19(4) and obtains an order of stay, complaining that there is no public purpose behind the acquisition and that the District Collector has acted arbitrarily. The complaint may ultimately be rejected and the stay vacated; but can the time so taken before this Court destroy the urgency which was there at the time the Collector had acted? If it will not, the same must be the case with delay caused for other reasons beyond the control of the Collector. It is not always the District Collector who exercises power u/s 19(4) who functions as the Land Acquisition Officer. After the direction u/s 19(4), the matter will go back to the Land Acquisition Officer who has to approach the Revenue Board for obtaining the declaration under Sections 6. The declaration has then to be published, and further proceedings under Sections 9 taken. Can the administrative delay and red tape involved at all these subsequent stages over-shadow the bona fides of the District Collector''s decision u/s 19(4)? Is it proper to test his opinion on the basis of the delay occasioned by others, subsequent to its formation?

Yet another aspect to be borne in mind is that most of the decision cited were rendered at a time when the courts were bound to protect the fundamental rights under Articles 19(1)(f) and 31 of the Constitution. Property rights were then sacrosanct, and dispensing with the enquiry under Sections 5 of the Land Acquisition Act, on the mere ipse dixit of a Collector, was a serious threat. The courts therefore exacted a regorous standard, for ensuring that arbitrary action by the authorities did not lead to an unreasonable restriction on the fundamental rights involved. The main part of the discussion in Kunhammed Keyi''s case 1965 KLT 1021, was about the validity of Section 19(4) itself, in the context of the guaranteed right under Article 19(1)(f). Should the same philosophy inform the Court''s approach after Articles 19(1)(f) and 31 have been deleted from Part III of the Constitution by the 44th amendment? The importance of property rights was examined by the Court of Appeal in Davis v. Johnson (1978) 1 All E.R. 841, where the question was whether a court could exclude the husband from the matrimonial home by injunction, at the instance of a "battered wife", inorder to protect her personal rights, in exercise of power under the Domestic Violence and Matrimonial Proceedings Act, 1976. It was vehemently contended, on the authority of the House of Lords, that an enactment could not ordinarily be construed so as to affect rights of property; and Lord Denning answered the point in the following terms:

I venture to suggest that the concept about rights of property is quite out-of-date. It is true that in the 19th century the law paid quite high regard to rights of property. But this gave rise to such misgivings that in modern times the law has changed course. Social justice requires that personal rights should, in a proper case, be given priority over rights of property. In this Court, at least, ever since the war we have acted on that principle.... I know that in those two cases the House of Lords reversed the decisions of this Court and gave priority to property rights. But Parliament in each case afterwards passed laws so as to restore the decisions of this Court. I prefer to go by the principles underlying the legislative enactments rather than the out-dated notions of the past....

If personal rights could thus get priority over property rights in certain contexts, why not give the same priority to public purposes or public interest, at least after the 44th amendment?

Turning now to the facts of the case on hand, what is seen is that the Executive Engineer of the P.V.I. Project had made a requisition to the Special Tahsildar on 28th November 1981, to take steps for acquiring the land needed for the field channel. He had drawn the Tahsildar''s attention to the urgency involved, from the stand point of agriculture. The Tahsildar inspected the site and forwarded the requisition to the District Collector on 28th December 1981 along with the relevant site plans, recommending invocation of the emergency provisions. On a consideration of the material on record, the District Collector accorded ''sanction'' for invoking "the emergency clause", and the formal direction u/s 19(4) was drawn up on 4th January 1982. The file apparently went back to the Land Acquisition Officer who caused Section 3 notification to be published within a matter of days. Rule 3 notice was attempted to be served shortly thereafter and the Revenue Board was then approached for its declaration under Sections 6. That declaration came only on 22nd September 1982, and notice under Sections 9(3) was issued by the Land Acquisition Officer on 2nd November 1982. Assuming that the proceedings were not sufficiently speeded up by the Land Acquisition Officer and the Revenue Board after 4th January 1982, it is impossible to think that the District Collector should have foreseen such delay when he was exercising his power u/s 19(4) on the aforesaid date. When he made the direction on 4th January 1982, he had before him the reports and recommendations of the Executive Engineer and the Tahsildar that steps for construction of the ''field channel'' had to be emergently taken. The Collector of a District should be expected to know about the need and urgency attached to a major irrigation work of his District. The main canal had already been completed and the field channels were obviously part of the scheme. On an examination of the relevant files, I am unable to hold that the District Collector had not applied his mind, or that the subsequent developments were such as to undermine the bona fides of his decision.

Reference can also be usefully made to the Division Bench decision in Venugopal Raja v. ''State of Kerala 1981 KLT (S-N) 5 case No. 10. The District Collector in that case had invoked Section 19(4) on 6th September 1978 and Section 3 notification was made on 10th October 1978. Declaration under Sections 6 was made only on 4th May 1979, and the Original Petition was filed on 4th March 1980. The Court refused to accept the Petitioner''s case that the notification and declaration had escaped his notice in due time. Section 3 notification in the present case was published in January, 1982 in two of the most widely circulated newspapers of the State. Ignoring the averment of the Respondents that Rule 3 notice was affixed on 5th February 1982, it is clear that Sections 6 declaration was also similarly publicised in September 1982. ''All the other neighbouring landowners had surrendered their lands earlier, in August, 1982. I am therefore not persuaded to accept the Petitioner''s case that all such developments had escaped his notice till Ext. P-1 was received by him on 10th December 1982. In my opinion, the Petitioner has not been vigilant; he has approached this Court with an unbelievable story in order to explain away his ''hibernation''. And as was done by the Division Bench in Venugopal Raja 1981 KLT S.N. 5, I decline to interfere with the acquisition proceedings impugned, even if it is possible to assume that some illegality was committed some where on the way.

The Original petition is accordingly dismissed. No costs.