MATHU v. STATE OF KERALA — 1982 DIGILAW 203 (KER)

Judgment :- 1. Going by the pleadings in O. P. No. 3997 of 1979 H it is seen that there is a school called S. V. J. B. School, Meppayil, under the District Educational Officer, Badagara. This school was started, again as is seen from the pleadings, in 1934. This is a lower primary school catering to the educational needs of the area where the school is situate. The Educational Agency who was in management of the school was one Kunhiratna Panicker. The site on which the school building stands having an extent of 30 cents together with the adjoining land having an extent of 37 cents belonged to Kunhirama Panicker and his nephew Manan Panicker. It appears that there was a suit for partitioning this property between the uncle and the nephew. As a result of the decision in the partition suit the 30 cents of land together with the school building thereon was allotted to Kunhirama Panicker, the Educational Agency. Such allotment presumably was on taking into account the fact that Kunhirama Panicker was the manager of the school and the proprietor Educational Agency. The remaining 37 cents lying to the north of the 30 cents mentioned above was allotted to Manan Panicker. He appears to have been residing in the house situate in the northern 37 cents of land. 2. Kunhirama Panicker sold the 30 cents of land together with the school building to the petitioner in 1973. It is common case that Kunhirama Panicker transferred the Educational Agency in favour of Manan Panicker. The position therefore was that Manan Panicker was the Educational Agency and the Manager of the S.V. J.B. school, Meppayil - but not the owner of either the, school building or the 30 cents of land where the school building is situate. It is submitted before me that Manan Panicker was paying rent to the petitioner for the school building. 3. While so, Manan Panicker died. His legal representative is the third respondent before me. He is the present manager of the School as also the Educational Agency. He applied for acquisition of 28.38 cents of land in R.S. 12/6 of Meppayil Desom, Nadakkuthazha Village which is the same as the school site. The purpose mentioned in that application is that for expansion of the school and for construction of a playground for the school. He is the present manager of the School as also the Educational Agency. He applied for acquisition of 28.38 cents of land in R.S. 12/6 of Meppayil Desom, Nadakkuthazha Village which is the same as the school site. The purpose mentioned in that application is that for expansion of the school and for construction of a playground for the school. The said application as is seen from the counter affidavit filed on behalf of respondents 1 and 2 was countersigned by the District Educational Officer, Badagara. Pursuant to the said application the Government published a notification under S.3(1) of the Kerala Land Acquisition Act, 1961 in the Gazette dated 27-12-1967. Ext. P1 is the said notification. The said notification says that 0.0837 hectares of land in Survey No. 12/6 pt. is likely to be needed for a public purpose namely, for expansion of Meppayil, S.V.J.B. school and for formation of play ground etc. The petitioner objected to the acquisition as per objection filed on 21-1-1978. It appears to have been her case that the acquisition is sought for malafide and to harass her. She filed a second objection in January 1979 copy whereof is marked herein as Ext. P2. 4. Notice of enquiry as contemplated by S.5 of the Kerala Land Acquisition Act was issued by the concerned authority. The enquiry was posted to 21-3-1978. The petitioner appeared through advocate. The third respondent also appeared. The enquiry was adjourned to 29-4-1978, on the request of the advocate who appeared for the petitioner. The concerned authorities inspected the site and the adjacent plot referred to in the objection on 23-5-1978. Then, that is when the land proposed to be acquired and the adjacent plot were inspected, the third respondent and the petitioner were present. The petitioner's objection was that the proposed acquisition is just to harass her. She raised a contention that there is a vacant space near the school which belongs to the third respondent and that can be acquired for the purpose. The authorities took the view that the alternate site pointed out by the petitioner was unfit for the purpose. This, according to the averments contained in the counter affidavit filed on behalf of respondents 1 and 2 was for the reason that the school building itself is situate on the plot proposed to be acquired. The authorities took the view that the alternate site pointed out by the petitioner was unfit for the purpose. This, according to the averments contained in the counter affidavit filed on behalf of respondents 1 and 2 was for the reason that the school building itself is situate on the plot proposed to be acquired. If the alternate site was acquired, it was also necessary to shift the school building to that site. The concerned authorities therefore came to the conclusion that since it was not feasible, the objection has no merit. The objections were therefore overruled, Ext. P5 produced along with C. M. P. No. 735 of 1980 is the order rejecting the objections raised by the petitioner. The said order is dated 17-11-1979. It appears that in the meanwhile the petitioner had approached the Government and the acquisition proceedings were stayed by the Government for some time. 5. The petitioner approached this court even before Ext. P5 order was passed on 17-11-1979, that is to say, three days prior to the passing of Ext. P5 order. The petitioner in the first instance prayed that Ext. P1 notification under S.3 of the Kerala Land Acquisition Act be quashed and that the first respondent be directed to consider the objections raised by the petitioner in Exts.P2 and P3 Ext.P3 is the still later objection preferred by the petitioner on 6-11-1979. The petitioner also prayed in the first instance that the respondents be prohibited from pursuing Ext.P1 notice. The O. P. was amended as per orders on C.M.P. No.735 of 1980. By the amendment the petitioner seeks to have Ext.P5 order also quashed by a writ of certiorari. The petitioner by the amendment also prayed that consequential declaration under S.6 of the Act, if any, be also quashed. It is common case now before me that the declaration under S.6 has been published in the Gazette dated 11-12-79. 6. It is not disputed on behalf of the petitioner that the purpose for which the acquisition is made is a public purpose; and fairly so in view of the decision of this court in Forane Church. Chalakudy v. State of Kerala and others in 1971 KLT. 733 and the decisions followed therein. 6. It is not disputed on behalf of the petitioner that the purpose for which the acquisition is made is a public purpose; and fairly so in view of the decision of this court in Forane Church. Chalakudy v. State of Kerala and others in 1971 KLT. 733 and the decisions followed therein. It is by now well-settled that there can be acquisition of land under the Act in favour of individuals provided they are benefited not as individuals but in furtherance of a scheme of public utility, (See Thambiram v. State of Madras (1952 7 DLR. 275) followed in Govinda Marar v. Govinda Kurup,1971 KLT. 730. Therefore there can be no case that though the acquisition apparently is in favour of the third respondent, the acquisition is not for a public purpose; and as already pointed out there is no such case. Therefore I proceed on the basis that the acquisition is for a public purpose. 7. What is contended before me is that the requirements mentioned in R.5 of the Kerala Land Acquisition Rules, 1963 have not been complied with in holding the enquiry contemplated by S.5 of the Act. That rule requires that the Collector shall fix a date for hearing the objections and give notice thereof to the objector as well as to the departmental officer or company or the local authority requiring the land, where such department is not the Revenue Department. The submission is that no notice has been issued to the Education Department and that therefore R.5 has not been complied with. 8. There is no merit in the contention as aforesaid. What R.5 requires is a notice being given to the departmental officer where the department has required for the acquisition of the land. Going by the pleadings in this case it cannot be said that the Education Department required the acquisition of the land in question for the purpose of the Education Department. Admittedly S.V.J.B. School is a private aided school and the acquisition cannot be at the instance of or for the purpose of the Education Department or any of the institutions run by the Education Department. R.5 therefore does not come into picture. The only parties concerned so far as the enquiry under S.5 is concerned are the objector namely, the petitioner and the third respondent at whose instance the acquisition is proposed. R.5 therefore does not come into picture. The only parties concerned so far as the enquiry under S.5 is concerned are the objector namely, the petitioner and the third respondent at whose instance the acquisition is proposed. As already seen from the narration of facts notice has been issued to the objector and the third respondent and both of them participated in the enquiry. 9. It is then contended that the counter affidavit filed on behalf of respondents 1 and 2 shows that the concerned authority under the Kerala Land Acquisition Act took into account the remarks of the Assistant Educational Officer who has as stated in the said counter affidavit, recommended the acquisition. The argument is that such remarks have not been made available to the objector the petitioner so that she could answer the said remarks. As rightly contended on behalf of the respondents that is not a statutory requirement. It cannot be said that the concerned authority under the Kerala Land Acquisition Act in any manner erred in taking into account the remarks of the Assistant Education Officer. It should not be forgotten that the purpose of the acquisition is for expansion of a school and for construction of play ground for the school. It should also be borne in mind that what is sought to be acquired is the very site on which the school building stands and the building itself. Therefore there is no merit in the contention as aforesaid. 10. It appears to me that the case on hand squarely falls within the principles stated by this Court in Forane Church, Chalakudy v. State of Kerala and others, 1971 KLT. 733. That was also a case where acquisition was sought for the purpose of a school. The contention was that the acquisition was to harass the owner of the land proposed to be acquired and the Educational Agency was motivated by malafides. A Division Bench of this Court said therein that "even if the motive of the church was malafide that would not vitiate Ext. P3, unless that motive has been shared by the quasi judicial authorities." As in that case here also there is no proof that the authorities under the Act acted malafide. 11. The learned counsel for the petitioner relied on the decision of the Supreme Court in State of Mysore and others v. V. K. Kangan and others AIR. P3, unless that motive has been shared by the quasi judicial authorities." As in that case here also there is no proof that the authorities under the Act acted malafide. 11. The learned counsel for the petitioner relied on the decision of the Supreme Court in State of Mysore and others v. V. K. Kangan and others AIR. 1975 SC. 2190 and of this court in Lonappan v. Sub Collector, Palghat AIR. 1969 Kerala 343 to contend for the position that the answer of the interested parties to the objection raised by the land owner should be made available to the land owner so that the land owner be in a position to answer the reply to the objection. I do not think that these decisions support such a proposition. In considering the question as to the object of holding an enquiry under S.5 pursuant to the provision in the rule like rule S now under consideration, the Supreme Court said that the answer of the concerned department at whose instance the acquisition is being made to the objection raised is a relevant factor and the concerned authority under the Act should consider the same in the light of and with reference to such answer. The Supreme Court pointed out that it "would be helpful to the Government in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view points". Therefore it was held that it was mandatory to issue notice of the objection to the department at whose instance the acquisition was made. In the result there is no merit in this O.P. The same fails and is dismissed. There will be no order as regards costs. Dismissed.