Varunny Anthony v. State of Kerala — 1966 DIGILAW 201 (KER)

JUDGMENT T.C. Raghavan, J. 1. The writ petitioner seeks to quash the proceedings of the District Collector, Trichur for acquiring some lands in the Municipality of Irinjalakuda for the purpose of shifting a crematorium thereto from another part of the Municipality. 2. The resolution of the Council to shift the crematorium was passed on 28th May 1946, evidenced by Ext- R-1. However, the Government of H.H. the Maharaja of Cochin by order, dated 22nd August of the same year disapproved of it (vide Ext. R-2); but, about 18 months thereafter, on 5th February 1948 the Local Self Government Department of the Government of Cochin decided to shift the crematorium (vide Ext. R-3). In pursuance to this proceedings were started by the Collector under the Cochin Land Acquisition Act of 1070; and an award was also passed on 30th March 1933 (vide Ext. R-8). The original owner of the lands concerned was a Pudukadan Rappai Lonappan, from whom the petitioner purchased subsequently. After the passing of the award by the Collector a representative suit (O.S. No. 599 of 1953) was filed by one of the Tamil Brahmin residents of the locality for a declaration that the Brahmins were entitled to have their dead bodies cremated in the crematorium which was resolved by the Council to be shifted. The suit was decreed by the trial and the appellate courts; but, ultimately, it was dismissed by this Court holding that the suit was premature (vide Irinjalaliuda Mundpality v. Ramanarayana Iyer 1962 K.L.T. 473). 3. Pending the above suit, appeal and second appeal the State was calling upon the municipality to place the compensation amount in the hands of the Collector of Trichur to finalise the acquisition; and the Council by its proceedings dated 1st April 1957 authorised the municipality to make the payment, when another suit (O.S. No 192 of 1957) was filed by a councillor of the municipality for a declaration that the proceedings dated 1st April 1957 were vitiated by illegality and also for an injunction restraining the municipality from disbursing the amount. That suit was decreed by the Munsiff; but, on appeal, the Subordinate Judge modified the decree. Against that a second appeal was also filed, but that is not being pressed. That suit was decreed by the Munsiff; but, on appeal, the Subordinate Judge modified the decree. Against that a second appeal was also filed, but that is not being pressed. To resume the narrative regarding the acquisition, the Collector issued notice of the award in November 1965 fixing the 27th of November as the date for receiving the compensation amount from him (vide Ext. P-2). I may add one more fact. The petitioner filed O.S. No. 49 of 1956 on 3rd February 1956 against the municipality for injunction to restrain the latter from taking possession of the properties and from spending, municipal funds; but that was dismissed on 25th, October 1556. 4. The first contention urged by the counsel of the petitioner is that section 292 (1) of the Cochin Municipal Act of 1118 applies to this case; and that therefore, the resolution passed by the Council (Ext. R-1) does not comply with the said provision. Section 292 (1) (a) provides that any registered or licensed place for the disposal of the dead is in such a state or situation as to be or to be likely to become dangerous to the health of persons living in the neighbourhood thereof, it may, with the previous. sanction of the Government, give notice that it shall not be lawful after a period to be named in such notice to bury, bum or otherwise dispose of any corpse at such place. The argument of the counsel is that this provision applies to the shifting of a crematorium from one place to another also, since a shifting necessarily involves the closing down of an existing crematorium, and the opening of another at another place is only consequential. In other words, the conditions necessary for closing down are essential for removal as well, because removal can arise only after the closing of an existing crematorium. The resolution evidenced by Ext. R-1 merely says that the Council has resolved to shift the crematorium existing in S. No. 851 in Ward No. III to a less crowded locality to be chosen. Since the Council has not applied its mind to the question whether the existing crematorium is in such a state or situation as to be or to be likely to become dangerous to the health of persons living in the neighborhood, the resolution is insufficient in law to shift it. 5. Since the Council has not applied its mind to the question whether the existing crematorium is in such a state or situation as to be or to be likely to become dangerous to the health of persons living in the neighborhood, the resolution is insufficient in law to shift it. 5. My attention has also been drawn to section 289 (1) of the same Act, which provides that the Council may, and shall, if no sufficient provision exists, provide places to be used as burial or burning grounds or crematoria either within or without the limits of the municipality. This provision is for providing additional burning grounds or new crematoria; and for that the condition laid down in section 292 (1) (a) is not essential. I am of opinion that section 292 (1) (a) applies to the shifting of an existing crematorium and that section 289 (1) does not apply to shifting and it applies only to providing additional and new crematoria. It follows that the resolution evidenced by Ext. R-1 is insufficient to meet the legal requirements. 6. The next contention is that the land acquisition proceedings commenced under the Cochin Land Acquisition Act cannot be continued under the Kerala Land Act of 1962, because there is no specific provision in the later Act to continue the proceedings commenced under the earlier Act, which has been repealed by the later Act. I do not think that simply because there is no provision in the later Act to the effect that proceedings commenced under the repealed Act will be continued under the later Act, the proceedings started under the earlier Act will fall to the ground. Under section 4 of the General Clauses Act of 1125 provision is made to meet such situations. Therefore, I hold that the proceedings commenced under the Cochin Land Acquisition Act can be validly continued under the Kerala Land Acquisition Act, which came into force in 1962. 7. The last contention is that since the award passed in March 1953 was communicated to the person interested only in November 1965, more than 12 2/1 years after the award, the proceedings have to be dropped and fresh proceedings have to be started. The counsel for the petitioner argues that the award of the Collector is in the nature of an offer, and the offer would take effect only on the date of its communication. The counsel for the petitioner argues that the award of the Collector is in the nature of an offer, and the offer would take effect only on the date of its communication. Therefore, the counsel contends, since the award was passed as early as March 1953 and it was communicated only in November 1965, it can take effect only on the latter date. The argument proceeds that the compensation awarded is based on the market price prevailing on the date of notification, which is even earlier than the date of the award, so that, there is real injustice in enforcing such an award after such a long lapse of time or delay of more than 12 years. 8. The counsel draws my attention to the observation of the Supreme Court in Dr. Grant v. The State of Bihar A.I.R. 1966 S.C. 237 wherein the Supreme Court has said that the award by the Collector is, strictly speaking, an offer made to the person interested in the land notified for acquisition. He also draws my attention to the observation of Lord Buck master in Dame Alice Fraser v. The City of Fraserville A.I.R. 1918 P.C. 308 "that the value to be ascertained is the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired, the question of what is the scheme being a question of fact for the arbitrator in each case" (the underlining is mine]. It is evident that what the owner of the land or the person interested in it loses is the market price of the land at the time of expropriation, in other words, when he is dispossessed. But, under our statutes relating to land acquisitions (in this case section 25 of the Kerala Land Acquisition Act, for which there was a corresponding provision in the Cochin Land Acquisition Act as well) the compensation payable is the market value of the land on the date of the notification by the State. It is also worthwhile to remember that the State has power to enter the land and dispossess the owner thereof immediately on the notification. It is also worthwhile to remember that the State has power to enter the land and dispossess the owner thereof immediately on the notification. It is therefore fairly clear that the legislature could not have intended a long time lag between the date of notification and the date of award by the Collector or the intimation of the award to the owner of the land. The time between the two must be a reasonable one: and what is a reasonable time in each case is a matter which will depend upon the circumstances of that case. A long delay of over 12 years is certainly not a reasonable time and for that reason also I think the proceedings must be quashed. 9. It is then pointed out by the Government Pleader and the counsel of the municipality that in this case, at any rate, there is no averment of prejudice or loss caused to the petitioner. May, or may not be; but, the question is one of legal principle. If there is unreason able delay between the notification, the market price of the land on which date alone the party interested in the land is entitled to, and the intimation of the award by the Collector to him, which is in the nature of an offer which the owner may or may not accept, the acquisition proceedings, for that reason, must be set at naught; and this need not depend upon the actual loss or prejudice caused to the owner of the land. 10. It is pointed out in the course of the arguments that the decision of Madhavan Nair, J. in Irinjalakuda Municipality v. Ramanaryana Iyer 1962 K.L.T. 473 is not quite correct, because the suit was instituted even after the award was passed, so that, it could not have been said that the suit was premature. Prima facie, this contention may appear to have some force; but, that has no bearing on the question before me. Still, it may be noted that my learned brother did not consider the merits of the case, but dismissed the suit only on the preliminary point that the suit was premature. In other words, Madhavan Nair, J. did not consider the legal sufficiency or otherwise of the resolution of the Council to shift the crematorium. 11. It is then pointed out that the petitioner was also responsible for the delay. In other words, Madhavan Nair, J. did not consider the legal sufficiency or otherwise of the resolution of the Council to shift the crematorium. 11. It is then pointed out that the petitioner was also responsible for the delay. This is not correct, because the representative suit (O.S. No. 599 of 1953) was filed in 1953, and that was ultimately disposed of by this Court only in 1962. It is true that during the interval the petitioner filed O.S. No. 49 of 1956; but that was dismissed just a few months after on 25th October 1956. Therefore, the petitioner was not responsible for the delay. In the result, I quash the resolution of the Council (Ext. R-1) and the land acquisition proceedings that followed culminating in the award of 1953, which was communicated to the petitioner only in 1965. In the circumstances, I pass no order regarding costs.