PATHUMMA v. TAHSILDAR (L. a. ), BADAGARA — 1983 DIGILAW 203 (KER)

Judgment :- 1. An important question of law touching the scope and applicability of R.3 of the Kerala Land Acquisition Rules, 1963 (the Rules), on which this Court appears to have had no occasion to deliberate, arises for decision in this writ petition. R.3 of the Rules lays down as follows: "Immediately after the publication of the notification under S.3, the Collector shall issue a notice stating that the land is needed or is likely to be needed, as the case may be, for a public purpose and requiring all persons interested in the land to lodge before the Collector within 30 days after the issue of the notification, a statement in writing of their objections, if any, to the proposed acquisition. This notice should be published at convenient places in the said locality and copies thereof fixed up in the office of the Collector. Taluk Tahsildar and Village Officer." It may also be necessary in this context to notice what S.3 of the Kerala Land Acquisition Act, 1961 (Act 21 of 1962) (the Act), lays down, and that is as follows: "3. Publication of preliminary notification and powers of officers thereupon (1) Whenever it appears to the Government or to the Collector that land in any locality within the State of Kerala 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 the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. (2) Thereupon, it shall be lawful for any officer, either generally or specially authorised by the Government or the Collector and for his servants and workmen. (2) Thereupon, it shall be lawful for any officer, either generally or specially authorised by the Government or the Collector and for his servants and workmen. (a) to enter upon and survey and take levels of any land in such locality; (b) to dig or bore into the sub-soil; (c) to set out the boundaries of the land proposed to be taken and the intended line of the work, if any, proposed to be made thereon; (d) to mark such levels, boundaries and line by placing marks and cutting trenches; (e) where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop„ fence or jungle; and (f) to do all other acts necessary to ascertain whether the land is adapted for such purpose: Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so." 2. A conjoint reading of S.3 and R.3 quoted above, would indicate that the requirement in the process of acquisition is the publication of a notification in the gazette to the effect that the land in question was needed or was likely to be needed for a public purpose; and secondly, the Collector would cause public notice of the substance of such notification; and in the public notice to be issued by the Collector he would require all persons interested in the land to lodge before the Collector within 30 days after the issue of the notification a statement in writing of their objections, if any, to the proposed acquisition; and this notice is required to be published at convenient places in the locality, and the copies thereof should be fixed up in the office of the Collector, Taluk Tahsildar and the Village Officer. The important question that falls for decision is whether, because R.3 enjoins or the principles of natural justice demand, service of notice of the proposal for acquisition of the land personally or individually on all persons interested in the land is a mandatory requirement, violation of which would vitiate the proceedings. 3. Sri. The important question that falls for decision is whether, because R.3 enjoins or the principles of natural justice demand, service of notice of the proposal for acquisition of the land personally or individually on all persons interested in the land is a mandatory requirement, violation of which would vitiate the proceedings. 3. Sri. Siby Mathew, the counsel for the petitioners, submitted that the intendment of the legislature in making the provisions contained in S.3 and R.3 is to give adequate opportunity to all persons interested in the land to lodge before the Collector their objections, if any, to the proposed acquisition; and if the provisions contained in the said section and the rule are construed in such a narrow way as to enable the Land Acquisition Officer to dispense with the service of notice direct on all the persons interested in the land, that would result in grave miscarriage of justice, as there is every likelihood of the land being acquired without the persons interested in the land getting an opportunity of being heard. 4. A plain reading of the section and the rule does not appear to require notice to be served on the persons interested in the land direct. As already noticed, the section requires only a publication of the notification in the gazette which has to be followed by the Collector causing public notice of the substance of such notification to be given at convenient places in the locality; it does not in terms require the Collector to cause the service of notice on the persons interested in the land direct. All that it requires is that the Collector shall issue a notice stating that the land is needed or is likely to be needed, as the case may be, for a public purpose, and requiring all persons interested in the land to lodge before the Collector within 30 days after the notification a statement in writing of their objections, if any, to the proposed acquisition. It also provides that this notice should be published at convenient places in the said locality and copies thereof fixed up in the office of the Collector, Taluk Tahsildar and Village Officer. It also provides that this notice should be published at convenient places in the said locality and copies thereof fixed up in the office of the Collector, Taluk Tahsildar and Village Officer. Analysing the rule, we find, its requirement would be satisfied if the Collector issues a notice stating the nature of the public need and asking all persons interested in the land to lodge before him a statement in writing of their objections, if any, to the proposed acquisition within 30 days after the issue of the notification. The latter part of the rule is in the nature of the guideline in regard to the manner in which the notice referred to in the former part is to be published. To repeat, there is no requirement, express or by necessary implication, to serve notice on all the persons interested in the land direct. There is yet another important aspect to be noticed, and that is the period of 30 days within which objections, if any, are to be lodged by the persons interested in the land is to be reckoned from the date of issue of the notification, not from the date of issue of the notice by the Collector. If, as a matter of fact, the rule required that individual notices are to be served on all persons interested in the land, and the date of such service of notice is to be deemed to be the date of knowledge of the proposal for acquisition, the framers of the rule, it is reasonable and logical to infer, would have fixed a time limit of 30 days, for the purpose of lodging the objections, to be reckoned from the date of such service. On the other hand, the indications are that the law presumes that the persons interested in the land had knowledge of the proposal for acquisition of the land from the time the notification is published in the gazette, and that appears to be the basis for fixing a time limit of 30 days after the date of the issue of the notification for filing objections, if any, to the proposed acquisition. That, service of notice directly on the persons interested in the land to be acquired, was not in the contemplation of the framers of the rule is quite clear from the absence of a specific direction therein to the Collector to issue notice to such persons direct, and also from the provision in the rule that the period of 30 days within which objections, if any, were to be lodged, against the proposed acquisition, was to be reckoned with reference to time of issue of the notification instead of the notice that was required to be issued by the Collector immediately after the publication of the notification in the gazette. 5. Sri Siby Mathew, the counsel for the petitioners, cited a few decisions in support of his contention that there was a mandatory requirement of service of notice direct on the persons interested in the land proposed to be acquired. In Jathlal Motilal v. State of Gujarat (AIR. 1972 Gujarat 131) a Division Bench of the Gujarat High Court, in Para.5 at page 133 of the report, has stated as follows: "Unless it is established by the plaintiff that he was in actual possession of the land, on or before the date of publication under S.4 of the Act, it was not incumbent on the land acquisition officer to serve him with a notice individually as contemplated in the rules framed by the Government in that behalf." That decision also contained certain observations agreeing with the dictum laid down by an earlier decision of that Court in Ashokkumar Gordhanbhai v. State of Gujarat ((1969) 10 Gujarat Law Reports 503), which read as follows: "We are not impressed by this submission of the learned Advocate General. It is true that neither S.4(1) nor S.5-A provides for any such personal notice, but the State Government itself under the powers vested under S.55 of the Act has framed rules for the guidance of the officers in dealing with objections lodged under S.5-A and rule No.1 itself contemplated the giving of such a notice. But we are satisfied that the rule making authority have intended and such an intention can be culled out by necessary implication that personal notice be given to persons interested. But we are satisfied that the rule making authority have intended and such an intention can be culled out by necessary implication that personal notice be given to persons interested. We are placing this interpretation under a conviction that the rule making authority could not have intended that if S.4(1) does not provide for giving of personal notice, no such personal notice should be given" In Maghanbhai Vanarshibhai Patel v. State of Gujarat & others ((1975) 10 Gujarat Law Reports 830) there is a passing reference to the failure in that case to serve notice on the person interested in the land, as required by R.1 of the Rules framed under S.55 of the Land Acquisition Act, and to the earlier decision of that Court in Ashokkumar Gordhanbhai v. State of Gujarat ((1969) 10 Gujarat Law Reports 503) in which, with reference to the said R.1 framed under S.55 of the Act, it was held that all the persons in occupation about whose interest the Government in normal circumstances would be expected to know, had to be given personal notice so that they could file their objections in respect of the acquisition. The decision in that case, restraining the Land Acquisition officers from proceeding with the steps for the acquisition of the property, however, mainly rests on the finding that it was arbitrary and was violative of Art.14 of the Constitution. It is obvious that the observation with respect to the need for personal notice on the persons interested in the land in the cases referred to above was influenced by the fact that R.1 of the rules framed by the State of Gujarat under S.55 of the Land Acquisition Act, stated: "Whenever any notification under S.4 of the Act has been published but the provisions of S.17 have not been applied and the Collector has under the provisions of S.4(1) issued notice to the parties interested...;" and the court inferred that the rule making authority could not have intended such personal notice if S.4(1) of the Act did not provide for the giving of personal notice. In other words, the reasoning is that unless issue of notice by the Collector to the interested parties under S.4(1) of the Act was intended, in R.1 of the rules framed under S.55 of the Act, it would not have been stated: "and the Collector has under the provisions of S.4(1) issued notice to the parties interested." The petitioners have no case that in the Kerala Rules there is any rule corresponding to R.1 of the rules framed by the State of Gujarat under S.55 of the Land Acquisition Act; and, therefore, the view expressed by the Gujarat High Court on the question of need to serve notice on the interested persons direct, would not be applicable to proceedings under the Kerala Act and the Rules thereunder. It is not necessary for us to examine whether that court was justified in inferring that but for the legislature having intended such notice to be served on the interested parties, the rule would not have been framed in that way; suffice to say that in the absence of a rule similar to R.1 of the Gujarat Rules framed under S.55 of the Land Acquisition Act in the Kerala Rules, that reasoning would not apply to the acquisition proceedings under the Kerala Act and the rules framed thereunder. It may also be noticed that in Ashokkumar Gordhanbhai v. State of Gujarat ((1969) 10 Gujarat Law Reports 503), there was really no need to go into the question of sufficiency of notice, as, on the facts of the case the court had found that the appellant-plaintiff had failed to prove that he was a tenant of the land on the relevant date so as to be entitled to receive any notice at all. 6. The decision of the Madras High Court in Easwara Pillai v. State of Tamil Nadu ((1972) 1 MLJ. 92) also was cited by Sri. Siby Mathew in support of his contention. This again was a case in which the decision of the Court was influenced by the rules framed under S.55 of the Land Acquisition Act. 6. The decision of the Madras High Court in Easwara Pillai v. State of Tamil Nadu ((1972) 1 MLJ. 92) also was cited by Sri. Siby Mathew in support of his contention. This again was a case in which the decision of the Court was influenced by the rules framed under S.55 of the Land Acquisition Act. In that case it was pointed out that Para.90 of the Board's Standing Orders provides inter alia: "In enquiring into the objections, the Collector will be guided by the following instructions: (1) Besides publishing the notice as prescribed in R.1 of the Appendix 1, the Collector should see that individual notices are served as far as possible on every person known or believed to be interested in the land to be acquired in the manner prescribed by sub-sections (3) and (4) of S.9 of the Land Acquisition Act (1 of 1894). In cases in which it has been impossible at the time of the issue of the notification under S.4(1) so as to describe all or any of the lands to be acquired that the persons interested therein can understand that their lands are likely to be needed for the public purpose, the individual notice should be issued as soon as the necessary details are available allowing 15 days thereafter for the presentation of objections to the acquisition." No reference is seen to have been made in this decision to an earlier decision of the Madras High Court in Mohd. Habibullah v. Spl. Deputy Collector (AIR. 1967 Madras 118) which consisted of Chandra Reddy, C. J., and Venkatadri J., who took the view that notice need not be addressed to all interested persons by name to comply with the requirement of S.4(i) of the Act. This decision also overlooks the following observations of Ramaprasada Rao J. in Maria Rosal De Rose v. State of Tamil Nadu ((1970) 2 MLJ.471): "S. 4(1) imposes two obligations before the Government could enter upon the land, survey, take level and do all such other acts necessary to ascertain whether the land is adopted for the public purpose. The first thing that has to be done is that the Government should publish a notification in the official Gazette that the land proposed to be acquired in any locality is needed or is likely to be needed for any public purpose. The first thing that has to be done is that the Government should publish a notification in the official Gazette that the land proposed to be acquired in any locality is needed or is likely to be needed for any public purpose. Secondly, the Collector or the Land Acquisition Officer, as the case may be, shall cause public notice of the substance of such notification to be given at convenient places in the said locality. It is on this second obligation prescribed in S.4(1) of the Act that reliance is placed by the learned Counsel for the petitioners to sustain his argument that the proceedings are irregular and tainted. The question, therefore, is whether non compliance of the second part of S.4(1) of the Land Acquisition Act would totally vitiate the Land. Acquisition proceedings; and in a case where substantially the prescription has been complied with whether still the proceedings would be void for non-observance of this mandate before they enter into the land for the purpose of survey etc. I do not think that the non-observance of the second part of S.4(1) would so vitiate the compulsory acquisition proceedings. The main purpose of S.4(1) and the sub-section following is to have preliminary investigation to enable the Court to appraise itself first hand about the suitability of the land proposed to be acquired and to ascertain whether it is adaptable for the public purpose. Such being the primary intention of the notification under S.4(1) and the other mandates in it, it does not appear to me that the non-observance of the second obligation in S.4(1) of the Land Acquisition Act would in any way go to the root of the problem so as to set at naught the acquisition proceedings pursuant to a notification made in the official gazette under S.4(1). The entire purpose of this is to give public notice of the proposal, and if, therefore, it is published in the locality and particularly persons affected by the proposal are aware that such an activity is afoot, then it is sufficient." Moreover, this decision has virtually been overruled by the decision of the Division Bench in Ghousia Begum v. Union Territory of Pondicherry (AIR. 1975 Madras 345) where, in Para.20 at page 352, it has been held as follows: "Ss. 1975 Madras 345) where, in Para.20 at page 352, it has been held as follows: "Ss. 4(1), 5A and 6(a) do not require service of the notification under S.4(1) and any notice personally for holding an enquiry under S.SA and the making of the declaration that the particular land is needed for a public purpose, on the parties interested in the land." A Division Bench of the Madras High Court consisting of Kailasam, C.J and Balasubrahmanyan, J. in Padmavathi v. State of Tamil Nadu ((1978)1 MLJ.223) specifically overruled the decision of Palaniswamy J. in Easwara Pillai v. State of Tamil Nadu ((1972) 1 MLJ. 92). K. R. Nachiappan v. State of Tamil Nadu (AIR. 1982 Noc.194 (Mad.)) Nainar Sundaram J. has expressed the view that there was no duty cast on the Land Acquisition Authority to give individual and personal notice to persons interested in lands notified for acquisition. It is evidently clear that the publication of preliminary notification which is mandatory in character as prescribed in the rule would be satisfied if the Land Acquisition Officer causes public notice of the gist of the Government's notification in convenient places in the locality, to be issued. This is also the view expressed by the Division Bench of the Mysore High Court in Pillayya v. State (AIR. 1969 Mysore 240). Therein it was pointed out that personal service of the notification under S.4 was not necessary. 7. Yet another decision brought to my notice by Sri Siby Mathew is the one by the Division Bench of the Bombay High Court in Ajithsingh v. State (AIR. 1972 Bombay 177) where, in Para.7 at page 180, the Court observed: "In our view, because the effect of the publication of the notifications under S.4 and 6 would be to compulsorily deprive the owner of his land even against the will, the requirement of the Rule of service of individual notice contemplated by the said R.1 must stand on the same footing as the other two modes of publication mentioned in sub-s. (1) of S.4 and it is, therefore, mandatory and not merely directory. All the said three forms of publishing the notification under S.4 are a pre-condition to the issue of a notification under S.6. All the said three forms of publishing the notification under S.4 are a pre-condition to the issue of a notification under S.6. The non-service of an individual notice as contemplated by R.1 would render the notification issued under S.6 invalid because it would not give proper opportunity to the person interested to urge his objections as contemplated by S.5-A." It may here be noted that R.1 of the rules framed under S.55 of the Land Acquisition Act referred to in the passage quoted above is identical to the one framed by the State of Gujarat under that section; and, again, the decision in that case appears to have been influenced by the assumption that S.4 contemplated not only publication of the notification, but also the issue of individual notice by the Collector to the persons interested in the land. For the reasons already stated this could not be accepted to be the correct position so far as acquisition under the (Kerala) Act and the Rules, as, like the Gujarat Rule or the Maharashtra Rule, there is no such provision requiring service of personal or individual notice on the persons interested in the land in the Kerala Rules. It may also be noted that in a subsequent decision a Division Bench of the Bombay High Court in A. P. Puranik v. Sholapur Municipality (AIR. 1973 Bombay 160) has held: "Being aware of that situation, the legislature did not provide for service of notice of the notification under sub-section (1) of S.4 individually on persons claiming interest in compensation." In arriving at that view the Division Bench had sought support from the views of the Madras and Mysore High Courts in Mohd. Habibullah v. Spl. Dy. Collector (AIR. 1967 Madras 118) and Pillayya v. State (AIR. 1969 Mysore 240). 8. It was then submitted by Sri Siby Mathew that the Supreme Court had in State of Gujarat v. Chaturbhai (AIR. 1975 SC. Habibullah v. Spl. Dy. Collector (AIR. 1967 Madras 118) and Pillayya v. State (AIR. 1969 Mysore 240). 8. It was then submitted by Sri Siby Mathew that the Supreme Court had in State of Gujarat v. Chaturbhai (AIR. 1975 SC. 629), on the facts of that case, held that the acquisition proceedings were vitiated for want of service of notice on interested parties Whatever the Supreme Court said in that case has to be understood in the context that it was a case of acquisition with particular reference to Land Acquisition (Companies) Rules, 1963: and R.4 of that rule provided that whenever a Company made an application to the appropriate Government for acquisition of any land, that Government should direct the Collector to submit a report on the matters mentioned therein. 9. Sri Siby Mathew also contended for the position that apart from the implied statutory requirement under R.3 of the Rules, the principles of natural justice also would require that individual notice should be served on all persons having interest in the land, as otherwise they would be deprived of their valuable rights in the property without their getting information in time in regard to the proposed acquisition, and without their getting an opportunity of being heard. I am not impressed with this argument. The Land Acquisition Act is a self-contained Code providing a complete machinery for the working of the scheme for acquisition of land for public purpose. It may incidentally be noted that there is no vagueness in the wording of S.3 or R.3. In terms neither the section nor the rule requires service of individual or personal notice on the persons interested in the land proposed to be acquired When the scheme of the Act and the Rules do not provide for personal or individual notice, failure to issue such personal or individual notice could not be put forward as the breach of the principles of natural justice. 10. 10. Let us now look at sub-section (3) of S.9 of the Act which deals with the claim for compensation; that states: "The Collector shall also serve notice to the same effect on the occupier, if any, of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate." It is crystal clear that where the legislature wanted notice to be personally served as a mandatory requirement, it has specifically stated so in the appropriate provisions of the Act itself. The principles of natural justice do not come into play where the whole process is guided and controlled by well defined provisions contained in the piece of legislation in that behalf, and, therefore, a plea of denial of natural justice based on an alleged breach of right or procedure not provided for in the legislation could not be countenanced. 11. Sri. M.K. Ananthakrishnan, the counsel for the respondent Panchayat, placed reliance on the decision of the Supreme Court in Bai Malimabu v. State of Gujarat (AIR. 1978 SC. 515) where, in Para.5 at page 518 it has been observed as follows: "The High Court has rightly held that no special notice was necessary to be given to the appellants in regard to the notification under S.4(1). Our attention was drawn to the alleged R.30B of the Gujarat Rules in support of the contention that such notice was necessary to be issued to the parties interested. There is no such requirement in the said Rule. It merely presupposes that the Collector has issued notices to the parties interested. There is no such requirement in the said Rule. It merely pre-supposes that the Collector has issued notices to the parties interested under S.4(1). The requirement of the section is giving of a general notice and by two methods (1) by the publication of the notification in the Official Gazette and (2) causing public notice of the substance of such notification to be given at convenient places in the locality." This decision, in my view, puts the matter beyond doubt. As pointed out by the Supreme Court, the Gujarat Rule pre-supposed that there was requirement for the issue of notice to the individuals interested in the land direct. As pointed out by the Supreme Court, the Gujarat Rule pre-supposed that there was requirement for the issue of notice to the individuals interested in the land direct. That is not really the requirement of the section. In the light of this exposition of the correct position of law on the point, there could be no doubt that the service of notice under R.3 on persons interested in the land direct, is not a mandatory requirement to validate the acquisition proceedings. The decision of this Court in Balan v. State of Kerala (1982 KLT.347) also stresses that the objection, if any, is to be filed within 30 days after the publication of the S.3(1) notification. 12. Sri Isac M. Perumpilly, the Government Pleader, appearing on behalf of the State, submitted that even on the petitioners' own showing they were not entitled to any notice whatsoever, as the Land Acquisition Officer was concerned only with persons whose names are borne on the revenue records. He contended that though the petitioners claimed that in the year 1969 they obtained title to and possession over the land under the transfer deed executed by the 3rd respondent, who was the registered holder, no steps for effecting the mutation were taken by the petitioners, so much so that in the revenue records the 3rd respondent continued to be shown as the registered owner of the land, and, therefore, if at all, it was only the 3rd respondent who was entitled to notice, and he admittedly having received notice, the petitioners could not have any legitimate complaint on the question of service of notice. He pointed out that under the relevant provisions of the Transfer of Registry Rules, 1966, it was incumbent on the person who derives title to or possession over the property to inform the revenue authorities regarding that and, therefore, in the absence of such entry in the revenue records there was no duty cast on the Land Acquisition Officer to give any notice to the petitioners. Sri Siby Mathew submitted that he had acquired the property under registered title deed and, therefore, the Land Acquisition Officer could have got the information from the Sub Registry. The contention of the Government Pleader that the Land Acquisition Officer was not duty bound to make such investigation appears to be correct, though I do not propose to pronounce finally on that point in this judgment. The contention of the Government Pleader that the Land Acquisition Officer was not duty bound to make such investigation appears to be correct, though I do not propose to pronounce finally on that point in this judgment. What emerges, therefore, is that the Land Acquisition proceedings in this case are not vitiated by the failure on the part of the Land Acquisition Officer to serve individual or personal notice direct on the petitioners who are stated to be persons interested in the land; and the result, therefore, is that the writ petition fails, and is dismissed, however, in the circumstances of the case, without any order as to costs. Dismissed.