Gopinatha Pillai v. The State Of Kerala — 1967 DIGILAW 167 (KER)

Judgment :- 1. These three Original Petitions arise out of the acquisition of certain lands in Kayamkulam Village, Karunagapally Taluk by the Government of Kerala for the purpose of the Central Coconut Research Station. The petitioners have claimed the same reliefs; and common questions arise in all the three cases. They were, therefore, heard jointly, and are being disposed of by this common judgment. 2. The Secretary, Indian Central Coconut Committee, Ernakulam, in his letter dated 9-4-1962, requested the Government of Kerala to acquire 9.5025 acres of land at Kayamkulam for the purpose of the Central Coconut Research Station. For the purpose of acquiring the said land, the Government published a notification under S.4(1) of the Travancore Land Acquisition Act, 1089 (hereinafter referred to as the Travancore Act) in the Kerala Gazette dated 5 31963. This was followed by a declaration under S.6(1) of the Travancore Act, which was published in the Kerala Gazette dated 12 31963. The Government also published a notice under S.9(5) of the Travancore Act, in the Kerala Gazette dated 19 31963 fixing 29 3 1963 for enquiring into the claims for compensation. The Travancore Act was repealed and re-enacted by the Kerala Land Acquisition Act, 1961 (hereinafter referred to as the Kerala Act). The Kerala Act came into force on 141963. After making due enquiries about the claims and objections, award was passed by the Collector under S.11 of the Kerala Act on 31-8-1965, 3. The petitioner in O. P. No. 820 of 1966 is a son of one Krishna Pillai, who was the registered holder of 4.07 acres out of the land acquired as per the aforesaid award. Krishna Pillai died in 1964; and after his death the said land devolved on his legal representatives; and the petitioner is one among them. According to the petitioner, his father and filed objections to the proposed acquisition; but nothing was heard about it afterwards, and he thought that the acquisition proceedings were dropped. He got a notice dated 212 5966 from the Executive First Class Magistrate and Revenue Divisional Officer, Alleppey under S.51 of the Kerala Act, directing him to surrender the said land as per the award. He got a notice dated 212 5966 from the Executive First Class Magistrate and Revenue Divisional Officer, Alleppey under S.51 of the Kerala Act, directing him to surrender the said land as per the award. According to the counter-affidavit filed on behalf of the State of Kerala, the petitioner's father had not filed any objections to the proposed acquisition; and the notice under S.51 of the Kerala Act was issued to the petitioner, as he objected to surrender the land as per the award. 4. There are two petitioners in O. P. No. 844 of 1966; and they are owners of 1.41 acres out of the land acquired under the above-said award. According to them, they submitted various written representations objecting to the acquisition of their land; and they thought that the acquisition proceedings were dropped, as they did not hear anything about the said representations. But to their surprise, they received notice dated 2121966 from the Executive First Class Magistrate and Revenue Divisional Officer, Alleppey under S.51 of the Kerala Act, directing them to surrender the said land as per the award. According to the counter-affidavit, filed on behalf of the State of Kerala, the first petitioner did not file any objections. Objections were filed only by the second petitioner which were duly considered and rejected. Notice under S.51 of the Kerala Act was issued as the petitioners objected to surrender the land as per the Award. 5. The petitioner in O. P. 2019 of 1966 is the owner of 50.250 cents out of the acquired land. The petitioner filed objections to the proposed acquisition, which according to the counter-affidavit filed on behalf of the State of Kerala, were duly enquired into and rejected. According to the petitioner, he thought that the proceedings were dropped, as nothing was heard for a long time, after the publication of the declaration under S.6 of the Travancore Act. But he was surprised to get a notice dated 2111966 from the Executive First Class Magistrate and Revenue Divisional Officer, Alleppey under S.51 of the Kerala Act, directing him to surrender acquired land. It is stated in the counter-affidavit filed on behalf of the State of Kerala, that the aforesaid notice was issued to the petitioner, as he objected to surrender the acquired land. 6. It is stated in the counter-affidavit filed on behalf of the State of Kerala, that the aforesaid notice was issued to the petitioner, as he objected to surrender the acquired land. 6. These Original Petitions have been filed to quash the notification and declaration issued by the Government of Kerala under S.3(1) and 6(1) respectively of the Travancore Act, and the notices issued under S.51 of the Kerala Act, as well as the proceedings on the basis of which the said notices were issued, and also to strike down the Travancore Act as unconstitutional. The petitioners' learned counsel raised the following points: (i) Acquisition of land for the purpose of the Central Coconut Research Station is a function relating to a matter to which the executive power of the Union extends. Under Art.258 of the Constitution such a function can De done by the State Government, only if the President has entrusted the same to the State Government. The impugned acquisition is bad under law, as it was done without the President's order. (ii) The Travancore Act is unconstitutional, as it does not contain a provision similar to S.5 of the Kerala Act, affording the persons affected by the proposed acquisition a reasonable opportunity of being heard, before the decision to acquire is made. (iii) The lands concerned in these cases were acquired under the Kerala Act; and the acquisition is bad under law, as it was done without compliance with the provisions of the Kerala Act. (iv) Assuming that the proceedings taken under the Travancore Act can be deemed to be proceedings under the Kerala Act, the said proceedings are violative of the principles of natural justice, as they were taken in great haste without affording a reasonable opportunity to the petitioners to object to the proposed acquisition and for being heard. 7. Point No. (i). The acquisition in this case was made by the State Government for the purpose of the Central Coconut Research Station at the request of the Secretary, Indian Central Coconut Committee. It is not disputed that the purpose for which the acquisition was made, is a public purpose. 7. Point No. (i). The acquisition in this case was made by the State Government for the purpose of the Central Coconut Research Station at the request of the Secretary, Indian Central Coconut Committee. It is not disputed that the purpose for which the acquisition was made, is a public purpose. The contention of the learned counsel for the petitioners is that the acquisition of land for the Central Coconut Research Station is a function relating to a matter to which the executive function of the Union extends, and that, under Art.258 (1) of the Constitution, it cannot be done by the State Government, unless authorised by the President. Art.258 (1) of the Constitution reads as follows: "258 (1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of Union extends." There is nothing in the above article or in the Kerala Act to show that a land cannot be acquired for a public purpose without the authority of the President, if the acquisition is for a purpose of the Central Government. The Indian Central Coconut Committee is a committee constituted by the Central Government under S.4 of the Indian Coconut Committee Act, 1941; and S.5 of this Act provides that the committee shall be a body corporate by the name of the Indian Central Coconut Committee, having perpetual succession and a common seal with powers to acquire and hold property both movable and immovable, and to contract, and shall by the said name sue and be sued. In State Trading Corporation of India v. The Commercial Tax Officer and others AIR 1963 SC. 1811 one of the two questions referred to a special Bench of the Supreme Court was whether the State Trading. Corporation of India is in substance a department and organ of the Government of India. The State Trading Corporation is a company registered under the Indian Companies Act, 1956. Its share capital is contributed entirely by the Central Government; and the shares are held by the President of India and two secretaries to the Government. It functions under the supervision of the Central Government. The State Trading Corporation is a company registered under the Indian Companies Act, 1956. Its share capital is contributed entirely by the Central Government; and the shares are held by the President of India and two secretaries to the Government. It functions under the supervision of the Central Government. The majority decision di j not answer the question, as it was considered unnecessary in view of the answer to the other question. Hidayatullah, J. who concurred in the majority decision, considered this question and held that a corporation has to be regarded as a separate entity from its members, and that the State Trading Corporation was not a department or organ of the Government of India. Das Gupta and Shah, JJ. who differed from the majority decision, took the same view on this question. The views expressed by these three learned judges are sufficient authority for the proposition that an incorporated or statutory body, which has an existence of its own, is not a department or organ of the Government, even if its whole capital is contributed and its functions are supervised by the Government. It is impossible to say in the nature of the legal character and functions of the Indian Central Coconut Committee, acquisition of land for the purpose of the Central Coconut Research Station conducted by the Committee is a function in relation to any matter to which the executive power of the Union extends. Art.258 (1) of the Constitution, has, therefore no application to this case. 8. Point No. (ii). The contention of the petitioners' learned counsel that the Travancore Act is unconstitutional, and must be struck down does not deserve very serious consideration. The ground urged by the learned counsel in support of this contention is that the Travancore Act does not contain a provision similar to S.5 of the Kerala Act, for giving an opportunity to a person affected by a proposed acquisition of land to be heard before the land is acquired. According to the learned counsel, this is in violation of the fundamental right to hold property. It was also submitted that the power conferred under the Travancore Act to acquire land without giving an opportunity to the person affected thereby is arbitrary, and is also violative of the principles of natural justice. According to the learned counsel, this is in violation of the fundamental right to hold property. It was also submitted that the power conferred under the Travancore Act to acquire land without giving an opportunity to the person affected thereby is arbitrary, and is also violative of the principles of natural justice. The learned Advocate General appearing for the respondents, submitted that there was no provision in the Travancore Act, which denies an opportunity to a person affected by the proposed acquisition, to be heard before the acquisition is decided upon, that it is always open for such a person to raise his objections after the notification under S.4 (1) is published, and that all such objections would be duly considered by the Government, before taking the decision to acquire or not to acquire the notified land. One of the petitioners in O. P. No. 841 and the petitioner in O. P. 2019 of 1966 had admittedly filed objections to the impugned acquisition. The predecessor-in-interest of the petitioner in O. P. No. 820 had also, according to him, submitted objections to the proposed acquisition, though it was denied by the first respondent. At any rate, the petitioners have no case that their objections were rejected, as not entertainable under the Travancore Act. Therefore, the attack made against the constitutionality of the Travancore Act on the ground that it does not give an opportunity to a person affected by the proposed acquisition to be heard against the said action cannot stand. Further the Travancore Act has been repealed by the Kerala Act; and there is no point in seeking to strike down a repealed Act. 9. Point No. (iii). The acquisition proceedings were started in this case under the Travancore Act, but the award was passed under the Kerala Act. The contention advanced by the learned counsel of the petitioners is that an award under the Kerala Act, can be made only in compliance with the provisions of the Kerala Act, and that, as admittedly no action has been taken under the Kerala Act before the Award was passed, the award is bad under law. The contention advanced by the learned counsel of the petitioners is that an award under the Kerala Act, can be made only in compliance with the provisions of the Kerala Act, and that, as admittedly no action has been taken under the Kerala Act before the Award was passed, the award is bad under law. S.3(1) of the Kerala Act provides that when it appears to the Government or Collector that land in any locality 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 that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. S.5 of the Kerala Act reads as follows: "5. Searing of objections. 1. Any person interested in any land which has been notified under sub-section (1) of S.3 as being needed or likely to be needed for a public purpose may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under sub-section (1) shall be made to the Collector in writing and the Collector shall give the objector an opportunity of being beard either in person or by counsel and shall, after hearing all such objections and after making such further enquiry, if any, as he thinks necessary, submit the case, (i) where the preliminary notification under sub-section (1) of S.3 was published by the Government, to the Government, (ii) where the preliminary notification under sub-section (1) of S.3 was published by himself, to the Board of Revenue; for the decision of the Government or the Board of Revenue, as the case may be together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Government or the Board of Revenue. as the case may be, shall be final." S. 6 provides that, when it is decided to acquire the land after considering the objections under S.5, a declaration shall be made to that effect, and that the same shall be published in the Gazette. The decision of the Government or the Board of Revenue. as the case may be, shall be final." S. 6 provides that, when it is decided to acquire the land after considering the objections under S.5, a declaration shall be made to that effect, and that the same shall be published in the Gazette. S.9 of the Act provides that public notice, as well as notice to all persons interested in the land proposed to be acquired, shall be caused to be given by the Collector, stating that the Government intended to take possession of the land and that claims to compensation for all interests to such land may be made to him. S.11 provides that the Collector shall make an enquiry into the claims and objections, and pass an award of the true area of the land acquired, the compensation allowed, and the apportionment of the said compensation among the persons interested in the land. S.16 provides that, if the Collector and all the persons interested agree as to the amount of compensation to be awarded, the Collector shall pass an award for the agreed amount. S.18 of the Kerala Act reads as follows: "18. Power to take possession When the Collector has made an award under S.11 or S.16, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances." The provisions contained in S.3, 5, 6,9 and 11 of the Kerala Act referred to above are mandatory. S.18 provides in clear terms that the Collector gets the right to take possession of the land only after the award is passed, and that the ownership of the land vests in the Government only on the Collector taking possession of the land pursuant to the award. It is clear from the aforesaid provisions of the Kerala Act, that the Government cannot deprive a person of his interests in any land, and obtain ownership of the same, except under an award passed under S,11 and by taking possession of the land under S.18, and that an award cannot be made except after compliance with the provisions of S.3, 5, 6 and 9, unless the Collector or Government act under S.19 of the Kerala Act and direct that the provisions of S.5 shall not apply. Admittedly, no action has been taken under S.19 of the Kerala Act. Admittedly, no action has been taken under S.19 of the Kerala Act. The award impugned in this case was passed on 31-8-1965 under S.11 of the Kerala Act, more than two years after the said Act came into force and without complying with the provisions of S.3, 5, 6 and 9 thereof, compliance with which is mandatory. The. result is that the award passed by the Collector is illegal and without jurisdiction. 10. The learned Advocate General drew my attention to S.4, 6,9, 11,15 and 16 of the Travancore Act, which correspond to S.3, 6, 9,11,16 and 19 respectively of the Kerala Act; and they contain almost similar provisions. He submitted that the award in this case was passed in continuation and on the basis of the proceedings taken under the Travancore Act, and that, as both the statutes contain similar provisions, the petitioners are not entitled to complain, as the provisions of the Travancore Act have been complied with. Regarding the absence of a provision in the Travancore Act, similar to S.5 of the Kerala Act, he contended that this did not mate any difference, as the Travancore Act did not deny an opportunity to a person affected by the proposed acquisition for objecting to the acquisition. I shall assume, for the purpose of this argument that, though the Travancore Act does not contain a provision similar to S.5 of the Kerala Act, an opportunity as provided by this Section is available by implication under the Travancore Act also. Still I am unable to accept the learned Advocate General's contention that the acquisition made under the Kerala Act on the basis of the proceedings taken under Travancore Act is good under law. Ordinarily, when an Act is repealed and re-enacted, the new Act contains a provision to the effect that the proceedings taken under the repealed Act shall be deemed to be proceedings taken under the corresponding provisions of the new Act. Such a provision is conspicuously absent in the Kerala Act. In the absence of such a provision, there is no link to connect the proceedings taken under the repealed Act to the proceedings continued and completed under the new Act. 11. Reliance was then made by the learned Advocate General on S.4 of the Interpretation and General Clauses Act, 1125 (Kerala) which corresponds to S.6 of the General Clauses Act, 1897 (Central Act X of 1897). 11. Reliance was then made by the learned Advocate General on S.4 of the Interpretation and General Clauses Act, 1125 (Kerala) which corresponds to S.6 of the General Clauses Act, 1897 (Central Act X of 1897). S.4 of the former Act reads as follows: "4. Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect or (b) affect the previous operation of any enactment so repealed or anyt hing duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceedings or remedy in respect of any such right privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed." The learned Advocate General contended that, by virtue of the above statutory provision, the repeal of the Travancore Act does not affect any right or liability accrued thereunder, or any investigation, legal proceeding or remedy in respect of any such right or liability, that the same can be continued as if the repealing Act had not been passed, and that a right accrued in favour of the State to acquire the petitioners' lands by virtue of the proceedings taken under S.3(1), 6(1) and 9 of the Travancore Act, and that the said proceedings can be continued. It was, therefore, submitted that the impugned award was not open to any legal objection. There is one fallacy in this argument. What the above statutory provision keeps alive, in spite of the repeal of an Act, is the right or liability accrued under the repealed Act and the right to institute, continue or enforce any investigation, legal proceeding or remedy in respect of the said right or liability under the repealed Act, and not under the repealing Act. What the above statutory provision keeps alive, in spite of the repeal of an Act, is the right or liability accrued under the repealed Act and the right to institute, continue or enforce any investigation, legal proceeding or remedy in respect of the said right or liability under the repealed Act, and not under the repealing Act. Therefore, S.4 of the Interpretation and General Clauses Act does not help the learned Advocate General, as in this case the pro-ceedings were continued and the award passed under the Kerala Act, and not under the Travancore Act. 12. It was then contended that the real question to be considered was whether the Collector had the power to acquire the lands concerned in these cases, and that, if he had the power the award passed by him is good, and the fact that reliance was made by him to a wrong provision of the law does not affect its validity. In other words, the contention was that, though the award was passed purporting to be under the Kerala Act, the Collector had the power to pass the award under the Travancore Act, by virtue of the provisions contained in S.4 of the Interpretation and General Clauses Act, 1125. In support of this contention, the learned Advocate General referred me to the decision of the Supreme Court in Hazari Mal Kuthiala v. Income Tax Officer, Special Circle Ambala and another AL R 1961 SC. 200. In this case, the appellant was re-assessed for the assessment year 1945-46 by an Income Tax Officer to whom the Commissioner of Income Tax transferred the case in exercise of his power under the Income Tax Act, 1922. The Act which applied to this case was the Patiala Income Tax Act, which also contained provisions similar to those contained in the Income Tax Act, 1922 for transfer of cases from one Income Tax Officer to another. But the Commissioner made no reference to those provisions contained in the Patiala Income Tax Act. It was contended that the transfer of the case under the Income Tax Act, 1922 was illegal, and consequently the re-assessment was bad under law. Rejecting this contention, the Supreme Court said: "This argument, however loses point, became the exercise of a power will be referrable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory. Rejecting this contention, the Supreme Court said: "This argument, however loses point, became the exercise of a power will be referrable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory. This principle is well settled See Pitamber Vajir Shet Dhondu Navlapa ILR.12 Bombay 486." The learned Advocate General is right in making the above line of approach and attempting to salvage the impugned award by relying on the Travancore Act. But he is still confronted with another insurmountable difficulty. S.4 of the Interpretation and General Clauses Act, 1125 can be pressed into service, only in respect of a right or liability accrued under a repealed Act. The learned Advocate General contended that, when once a notification was issued under S.4(1) of the Travancore Act, a right accrued to the Government to acquire the land in respect of which the notification was issued, and thereafter the right of the owner of the land was only to get compensation under this Act. I am unable to accept this contention. In one sense, the State has always got the right to acquire any land for a public purpose in accordance with the law relating to land acquisition: But such a right (assuming it to be properly so called) is not a "right acquired or accrued" within the meaning of S.4 of the Interpretation and General Clauses Act, 1125. It is only a inchoate right, a right to take advantage of the provisions of an enactment. Proceedings taken under S.4(1) 6(1) or 9 of the Travancore Act are, in my opinion, only steps leading to the accrual of a right to acquire a land, and such a right does not accrue until the award is passed by the Collector. The award entitles him to take possession of the land, which shall thereupon vest absolutely in the Government. 13. Reference may, in this context, be made to the following statement of law appearing at page 535 in Volume I of Statutes and Statutory Construction by J. G. Sutherland (III Edition): "Where a saving clause is appended to an act which by express declaration or by necessary implication repeals another enactment, the law repealed is continued in force as to existing rights and pending actions in accordance with the terms of the saving clause. The saving clause within the repealing statute relates to accrued rights and pending proceedings. Thus, where the right under controversy has not accrued prior to the repeal, a saving clause cannot preserve the repealed statute until the right is acquired, nor can it operate to hasten the acquisition of the right or cause of action", In Abbott v. Minister for Lands (1895) AC. 425 the question arose whether a provision contained in a repealed statute, which entitled a holder of lands granted by the Crown to make conditional purchases of adjoining lands, was an accrued right which could be enforced under the repealed Statute. The following observations contained in the judgment of the Privy Council in the above case are relevant: "It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have take'advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching. It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without impropriety be termed a "right." But the question is whether it is a "right accrued" within the meaning of the enactment which has to be construed. Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words "obligations incurred or imposed". They think that the mere right (assuming it to be properly so called) existing in the members of community or any class of them to take advantage of an enactment without any act done by an individual towards availing himself of that right, cannot properly be deemed a "right accrued" within the meaning of the enactment,." I therefore come to the conclusion that it is not open to the Government after the repeal of the Travancore Act to acquire any land under this Act, by virtue or as a continuation of the proceedings taken thereunder, and that the acquisition made in these cases cannot be salvaged on the basis of the Travancore Act. 14. 14. Point No. (iv) It was conceded on behalf of the State that, even in spite of the absence of a provision in the Travancore Act similar to S.5 contained in the Kerala Act, a person affected by a proposed acquisition of land is entitled to a reasonable opportunity to object to the said acquisition and to be heard in the matter, after the publication of the notification under S.4 (1) of the Travancore Act, and before the decision to acquire the said land is made. In these cases, the notification under S.4 (1) of the Travancore Act was published in the Kerala Gazette dated 5-3-1963 and the declaration under S.6 (1) was published in the Gazette dated 12 31963. The notice under S.9 (5) of the said Act calling for claims and objections was published in the Gazette dated 19 31963 The whole thing was done in great haste, for which apparently there was no justification. The award itself was passed only more than two years thereafter. It is true that some of the petitioner filed objections to the proposed acquisition. But there was no response to the said objections at any time; and they did not know what happened to them. Under these circumstances, it is patent that the petitioners were not afforded any reasonable opportunity to object to the acquisition of their lands and to be heard in the matter. Land Acquisition proceedings are quasi-judicial in character. Failure of the authorities to give such an opportunity to the petitioners is violative of the principles of natural justice; and it vitiated the whole proceedings. The acquisition impugned in these cases is liable to be set aside on this ground also. 15. In the result, I allow these Original Petitions, and quash the notices issued to the petitioners by the Executive First Class Magistrate and Revenue Divisional Officer, Alleppey under S.51 of the Kerala Act, as well as the Land Acquisition proceedings, on the basis of which the said notices were issued. The parties will bear their respective costs. Allowed.