Taharali Abdu Hussain Barbhaya vs State of Kerala and Others

P.C. Balakrishna Menon, J.—In this writ petition, the petitioner challenges the land acquisition proceedings evidenced by Exts. P1 to P4 in so far as it relates to the acquisition of 0.0440 hectare of land in T. S. No. 89/181 of Nellicode Village. Kozhikode Taluk, belonging to him, A notification u/s 3 (1) of the Kerala Land Acquisition Act was published in the Gazette dated 15-7-1969. A notice under Rule 3 of the Land Acquisition Rules was served on the petitionar on 15-8-1969. Ext P1 is a copy of the no-tice served on him. According to the petitioner, he filed objections to the proposal for acquisition as contained in Ext. P. 1 notice.

The learned Government Pleader appearing on behalf of respondents 1 and 2 however submits that no object-tion to the proposal had been filed by the petitioner. There was an enquiry u/s 5 of the Land Acquisition Act on the objections received by the Land Acquisition Officer from other persons who were interested in the land included in the notification. The total extent of Land notified is 79.3 cents. A declaration u/s 6 of the Act was published in the Gazette dated 27-10-1970. A notice u/s 9 (3) of the Act was served on the petitioner for the award enquiry to be held on 22-1-1973. Ext. P2 is a copy of this notice. It is submitted that the petitioner filed objections even at the stage of Ext. p2 notice. Nothing further happened until Ext. P3 notice u/s 9 (3) was issued on 22-4-1980 for an award enquiry to be held on 21-5-1980. An award was passed by the Land Acquisition Officer on 31-7-1980 and Ext. P4 is a copy of the award.

There is a long delay in passing the award after the declaration u/s 6 was published in the gazette on 27-10-1970. The learned Government Pleader points out that the delay was due to the fact that the Corporation of Calicut on whose behalf the acquisition proceedings were taken was not able to deposit the cost of acquisition of the land involved in these proceedings as required by the Government. The Cor-poration apparently had no funds and did not therefore deposit the amount. Long afterwards it would appear that the Corporation found funds to deposit the cost of acquisition and shortly afterwards Ext. P3 notice was issued on 22-4-1980 for an award enquiry to be held on 21-5-1980. The question is whether the acquisition proceedings in the present case is vitiated for the long delay after the declaration u/s 6 of the Land Acquisition Act was published in the Gazette.

The Supreme Court in Ambalal Purshottam etc. Vs. Ahmedabad Municipal Corporation and Others, stated at page 1227 thus:

"11.....We are not hereby to be understood as suggesting that after issue of the notifications under Sections 4 and 6 the appropriate Government would be justified in allowing the matters to drift and to take in hand the proceeding for assessment of compensation whenever they think it proper to do, It is intended by the scheme of the Act that the notification u/s 6 of the Land Acquisition Act must be followed by a proceeding for determination of compensation without any unreasonable delay".

In State of Madhya Pradesh and Others Vs. Vishnu Prasad Sharma and Others, , the Supreme Court held that it is not permissible to treat a notification u/s 4 of the Land Acquisition Act (Central Act of 1894) as a kind of reservoir from which the Government may from time to time draw out land and make declarations with respect to it successively. Once a declaration u/s 6 is made with respect to the particular area of land, the remaining extent of land included in the notification u/s 4 would stand automatically released. In para 14 of the judgment of Wanchoo J. it is stated as follows:

"14.....Two things are plain when we come to consider the construc- tion of Sections 4, 5A and 6. The first is that the Act provides for acquisition of land of persons without their consent, and though compensation is paid for such acquisition; the fact however remains that land is acquired without the consent of the owner thereof and that is a circumstance which must be borne in mind when we come to consider the question raised before us. In such a case the provisions of the statute must be strictly constructed as it deprives a person of his land without his consent. Secondly, in interpreting these provisions the court must keep in view on the one hand the public interest winch compels such acquisition and on the other the interest of the person who is being deprived of his land without his consent. It is not in dispute that it is open to the appropriate government to issue as many notifications as it deems fit u/s 4(1) even with respect to the same locality followed by a proper notification u/s 6 so that the power of the appropriate government to acquire land in any locality is not exhausted by the issue of one notification u/s 4(1) with respect to that locality. On the other hand as the compensation has to be determined with reference to the date of the notification u/s 4(1) the person whose land is to be acquired may stand to lose if there is a great delay between the notification u/s 4(1) and the notification u/s 6 in case prices have risen in the meantime".

In the present case it cannot be said that there is much of delay in issuing a declaration u/s 6 of the Act after the notification u/s 3. But the acquisition proceedings started as early as on 15-7-1969 were concluded by the passing of an award on 31-7-1980 only. The price that the owner of the land is entitled to as per the award is only the market value of the land at the time of the notification u/s 3.

Almost under similar circumstances, a learned Judge of this Court in Moideen v. Special Tahsildar, Land Acquisition 1981 KLT 59 quashed the entire land acquisition proceedings for the reason of the delay in passing an award after a declaration u/s 6 bad been published.

For the aforesaid reasons, the land acquisition proceedings evidenced by Exts. P1 to P4 are quashed in so far as the same relate to the land in T. S. No. 89/182 of Nellicode Village, belonging to the petitioner. The O. P. is allowed there will be no order as to costs. 18th November, 1981.

Issue carbon copy of this judgment to Counsel on usual terms.