RAJAGOPALAN NAIR v. STATE OF KERALA — 1984 DIGILAW 36 (KER)

Judgment :- 1. The petitioners are owners of properties in respect of which proceedings have been initiated under the Kerala Land Acquisition Act, 1961 (hereinafter referred to as the "Acquisition Act"). They challenge Exts. P1, P7, P8 and P9. By Ext. P1 dated 3-11-1978, the lands in question were notified for acquisition in terms of S.3 of the Acquisition Act. The object stated in Ext. P1 is as follows: "And whereas it appears to the said Collector that the lands specified in the schedule below are needed or are likely to be needed for a public purpose, to wit for implementing Chettivilakom Housing Accommodation scheme, notice to that effect is hereby given" .......................... Ext. P7 is the order of the Board of Revenue rejecting the petitioners' objection that proceedings under the Acquisition Act as per Ext. P1 should not have been initiated until the finalisation of a scheme under the Kerala State Housing Board Act, 1971 (hereinafter referred to as the "Housing Board Act"). Ext. P8 dated 15-2-1981 is a declaration made by the Board of Revenue in terms of S.6 of the Acquisition Act. Ext. P9 is a notice issued under S.9 of the Acquisition Act. 2. The main contention urged on behalf of the petitioners is that no order under S.5 of the Acquisition Act should have been made by the Board of Revenue so long as the petitioners' objections in respect of the scheme notified under the Housing Board Act have not been dealt with. By Ext. P4 the petitioners raised various objections before the Housing Board. They stated that the scheme was unnecessary and there was no need to acquire the petitioners' valuable lands. These objections, it is stated in paragraph two of the counter affidavit filed on behalf. of the Housing Board, have already been rejected by the Board. 3. A notification was issued by the Housing Board on 18-12-1979 under S.50 of the Housing Board Act. This Section reads: "50. Preparation, publication and transmission of. These objections, it is stated in paragraph two of the counter affidavit filed on behalf. of the Housing Board, have already been rejected by the Board. 3. A notification was issued by the Housing Board on 18-12-1979 under S.50 of the Housing Board Act. This Section reads: "50. Preparation, publication and transmission of. notice as to housing or improvement schemes and supply of documents to applicants:-(!) When any housing or improvement scheme has been framed, the Board shall prepare a notice to that effect and specify (a) the boundaries of the area comprised in the scheme, and (b) the place or places at which particulars of the scheme, a map of the area, and details of the land which it is proposed to acquire and of the land in regard to which it is proposed to recover a betterment fee, may be seen at reasonable hours. (2) The Board shall (a) cause the said notice to be published weekly for three consecutive weeks in the Gazette and in two leading daily newspapers in the State, specifying the period upto which the objections will be received; and (b) send a copy of the notice of the local authority concerned; (3) The Secretary shall cause copies of all documents referred to in clause (b) of sub-section (1) to be delivered to any applicant on payment of the fee fixed by the Board." 4. It is true that a notice under S.50 is not the final adoption of the scheme. S.50 only shows that a scheme has been framed and notified. S.54 gives the Board the power to abandon, modify or sanction the scheme which it has framed. Even after the scheme has been sanctioned, it is open to the Board under S.57 to alter it or to cancel it. It would thus appear that until the scheme is implemented, the scheme does not seem to have any finality, as it is liable to be abandoned, modified, altered or cancelled as provided under S.54 and 57. 5. The petitioners' contention is that so long as the scheme is not final, and in any case so long as their objections have not been finally disposed of by the concerned authority, the finality attached to the proceedings under the Acquisition Act should not be invoked. 5. The petitioners' contention is that so long as the scheme is not final, and in any case so long as their objections have not been finally disposed of by the concerned authority, the finality attached to the proceedings under the Acquisition Act should not be invoked. Little purpose would be served by their objections under the Housing Board Act if by the proceedings under the Acquisition Act they are divested of their rights in the properties. These arguments are sought to be supported by reference to certain observations of the Mysore High Court in Achiah Chetty v. State of Mysore (AIR. 1962 Mysore 218). That was a case where it was contended that when two Acts provided for acquisition of land, namely. City of Bangalore Improvement Act (5 of 1945) and the Mysore Land Acquisition Act, 1894 (7 of 1894), the former Act which contains more elaborate procedure for the better protection of the interest of the land owner ought to have been resorted to and not to the comparatively summary proceedings of the latter Act. The observations made by the High Court, which the petitioners rely on, became, in my view, irrelevant with the final disposal of the case by the Supreme Court in appeal after the Validation Act was enacted subsequent to the decision of the High Court. That was a case which turned on the question as to which of the two enactments applied for the purpose of acquisition, when both of them contained provisions for acquisition of properties. That is not the position in the present case where there is only one enactment which is available for acquisition and that, as stated in S.71 of the Housing Board Act, is the Kerala Land Acquisition Act, 1961 (Act 21 of 1962). The observations of the Mysore High Court, subsequent to those of the Supreme Court in appeal, do not, therefore, help the petitioners. Another decision which is relied on by the petitioners is the decision of the Calcutta High Court in Mureswar Ram v. L.A. Collector (71 CWN.78). That case was decided on the basis of an amendment of the Land Acquisition Act, 1894 adding a new Provision for the purpose of avoiding duplication in the procedure provided under S.43 to 47 of the Calcutta Improvement Act, 1911. The amendment was as follows: "1A. That case was decided on the basis of an amendment of the Land Acquisition Act, 1894 adding a new Provision for the purpose of avoiding duplication in the procedure provided under S.43 to 47 of the Calcutta Improvement Act, 1911. The amendment was as follows: "1A. after S.6, the following section shall be deemed to be inserted, namely: 6A. when acquisition is proposed to be made of land comprised within any improvement scheme framed by the Board and published under S.49 of the Calcutta Improvement Act, 1911: (i) the publication of a notice of the Improvement Scheme under sub-s. (2) of S.43 of the Calcutta Improvement Act, 1911. shall be substituted for and have the same effect as publication of a notification in the Official Gazette and giving public notice of the substance of such notification in the locality under S.4; (H) proceedings under S.45 and sub-s. (1) of S.47 of the Calcutta Improvement Act. 1911, shall be substituted for and have the same effect as proceedings under S.SA; (iii) the publication of a notification under S.49 of the Calcutta Improvement Act, 1911, shall be substituted for and have the same effect as declaration under S.6." It was on the basis of the newly introduced provisions by this amendment that the case was decided by the High Court. That decision is, therefore, of no help in the instant case, where, as I have stated earlier, the only provisions which are germane to acquisition are those under the Land Acquisition Act and none other. 6. The relevant provisions of the Housing Board Act enable persons interested in the land affected by the scheme to raise objections in regard to its formulation and those objections have to be disposed of by the concerned authorities. The implementation of the scheme must necessarily await the disposal of such objections. The acquisition by the concerned authority under the Acquisition Act is solely with reference to the public purpose referred to in S.3. That is a purpose which has been mentioned in Ext. P1 notification. 7. The question, therefore, is whether or not it can be justifiably contended that the concerned authority could not have reasonably formed an opinion, as contemplated under S.3 or under S.6 of the Acquisition Act, that the acquisition was necessary for a public purpose. 8. That is a purpose which has been mentioned in Ext. P1 notification. 7. The question, therefore, is whether or not it can be justifiably contended that the concerned authority could not have reasonably formed an opinion, as contemplated under S.3 or under S.6 of the Acquisition Act, that the acquisition was necessary for a public purpose. 8. S.3 says: "Whenever it appears to the Government or to the Collector that land in any localityis needed or is likely to be needed for any public purpose" (emphasis supplied) Undoubtedly at the time of Ext: P1 the authority was reasonably of the view that the land was needed or was likely to be needed for a public purpose. Although notification under S.50 of the Housing Board Act had not existed at the relevant time, the fact that it was likely to be made and that a scheme was under way and that a public purpose was certain to arise pursuant to the framing of a scheme was apparently well-known to the authority. S.6 declaration, however, speaks of a present purpose and not of a future purpose. It says: "when the Government or the Board of Revenue are or is satisfied after considering the report made by the Collector under sub-section (2) of S.5 that any particular land is needed for a public purpose, a declaration shall be made " (emphasis supplied) Admittedly the scheme had been notified under S.50 of the Housing Board Act prior to the declaration under S.6 of the Acquisition Act. The question is did a public purpose exist in respect of which land was needed at the time of declaration under S.6 of the Acquisition Act? The petitioners' contention is that no public purpose could exist until a scheme existed. A scheme did not exist until it was final in the sense that it was no longer liable to be abandoned or cancelled. So runs the argument. 9. The fact that a scheme is liable to be modified or altered or even abandoned or cancelled does not make the scheme notified under S.50 any the less a scheme. The scheme is apparently the result of thorough preparation which preceded the notification under S.50. As a scheme it has become final subject to modification or alteration or even cancellation, depending upon the merits of the objections of the interested persons. The scheme is apparently the result of thorough preparation which preceded the notification under S.50. As a scheme it has become final subject to modification or alteration or even cancellation, depending upon the merits of the objections of the interested persons. Although the finality of the scheme is thus relative or qualified by subsequent events, and in that sense defeasible, the scheme is nevertheless a scheme, for it is the result of serious preparation that has obviously gone into the making of it. The public purpose arises not because a scheme is final in the sense that.it is unalterable or beyond abandonment or cancellation, but because it is a scheme which can be put into operation effectively. The public purpose arises from the very need which gave rise to the scheme. The public purpose is not any the less a public purpose merely because a scheme is defeasible or the purpose itself is defeasible by subsequent events. Where it appears to the authority that a public purpose has arisen from the framing of a scheme, albeit the scheme notified under S.50 is subject to changes as provided under S.54 and 57, nevertheless S.6 of the Acquisition Act is in terms attracted. To delay the implementation of a scheme, by postponing the acquisition of land which would be urgently needed for the scheme, merely because certain objections were raised, not under the Acquisition Act, but under the Housing Board Act in regard to matters referred to under the latter Act, would be to defeat the very object of the relevant provisions of the Acquisition Act and thus defeat the public purpose itself. This, as I see, is the legislative intent. This, as I see, is the manner in which the provisions of the two enactments providing for vital, but different, aspects of the same matter governing, the public purpose, and both requiring to be considered separately, are to be viewed. 10. The petitioners have raised certain contentions based on Art.14 of the Constitution. I am not convinced that Art.14 has any relevance to the facts of this case. All persons whose lands are being acquired under the Acquisition Act for the purpose of the Housing Board are in identical circumstances. I see no discrimination in so far as the petitioners are concerned. 11. I am not convinced that Art.14 has any relevance to the facts of this case. All persons whose lands are being acquired under the Acquisition Act for the purpose of the Housing Board are in identical circumstances. I see no discrimination in so far as the petitioners are concerned. 11. The challenge against the proceedings under the Acquisition Act, merely by reason of the pendency of the objections under the Housing Board Act, is, in my view, unsustainable. The Original Petition is dismissed. No costs.