St. Marys society v. Alphonsa — 1987 DIGILAW 536 (KER)

Judgment :- 1. When an objection against compulsory acquisition under the Kerala Land Acquisition Act can be made within thirty days after the publication of the preliminary Notification under S.3(1) of the Act. two questions naturally arise for consideration. (1) whether an objection filed beyond the thirty days of the publication of the preliminary Notification can be considered and (2) when. exactly the right to file objection arises. The determination of the starting point for filing objections decides the period during which this right can be exercised. We shall. therefore. advert ft these principal questions of law arising for consideration in this appeal. 2. Land Acquisition. avowedly for a public purpose. initiated as early as 1976. is still not finalised even after eleven years. A learned single judge has quashed the declaration published in 1983 under S.6 of the Act and directed fresh consideration of the objections. It should be our endeavour to give a quietus to the controversies raised before this Court at least at this stage and either allow the Land Acquisition proceedings to continue or drop the entire proceedings. We do not want the grievances. if any. of the writ petitioner to be endured endlessly or the public purpose. if well founded. to be frustrated or defeated. 3. The fourth respondent in the writ petition. a fishermen's society. "an unregistered association of fishermen". St. Mary's Society by name is the appellant. Acquisition was sought for the purpose of laying a road leading to a fish landing centre for providing space for spreading. drying and storing fish nets. fishing tools etc.. for repair and maintenance of fishing boats. for construction of mini shopping centre and halting place for the public. fishermen and public vehicles. Primarily satisfied with the public purpose. a preliminary notification issued under S.3(1) of the Kerala Land Acquisition Act was published in two prominent Malayalam dailies on 5-3-1981 and 29-3-1981. It was published that this land was needed for a public purpose. "to wit for the development of fish landing centre at Cherukode". No objection was filed within thirty days of the publications. the writ petitioner having filed his objection only on 8-6-1981. Thereafter. S.6 declaration was issued by the Board of Revenue on 27-1-1983 and published in the newspapers on 27-2-1983 and 2-3-1983. 4. Without producing either the S.3(1) Notification or the S.6 declaration. No objection was filed within thirty days of the publications. the writ petitioner having filed his objection only on 8-6-1981. Thereafter. S.6 declaration was issued by the Board of Revenue on 27-1-1983 and published in the newspapers on 27-2-1983 and 2-3-1983. 4. Without producing either the S.3(1) Notification or the S.6 declaration. the writ petitioner challenged the declaration and the entire acquisition proceedings. A learned single judge has quashed the declaration and directed the authorities to consider the writ petitioner's objections. Aggrieved. the appellant has filed this appeal. for. the acquisition. initiated at his instance. remains pending and under the law. no declaration beyond the period of three years from the date of Notification can now be issued. 5. The objections filed by the writ petitioner on 8-6-1981 have to be considered by the authorities. provided they are filed within time as stipulated under the Act or if they are required to consider objections filed even beyond the statutory period. The right to file objections is statutorily conferred under S.5(1) of the Kerala Act which reads thus: "Hearing of objections. (1) Any person interested in any land which has been notified under sub-s. (1) of S.3 as being needed or likely to be needed for a public purpose may. within thirty days after the publication of the notification. object to the acquisition of the land or of any land in the locality. as the case may be." 6. The Supreme Court in State of Mysore v. Abdul Razak (AIR 1973 SC 2361) considering a similar prevision. S.5A of the Central Land Acquisition Act. held thus: "S.5A empowers the interested person to object to the acquisition of any land but his objection should be filed within thirty days from the date of the issue of the notification. Any objection filed thereafter need not be considered as the same is filed after the time stipulated In S.5A(1)." 7. The same view has been expressed by this Court in Land Acquisition Officer v. Mathews Mar Ivanios (1975 KLT 584) thus: "We have little doubt that an objection filed beyond 30 days of the notification under S.3 did not require to be enquired into under the statutory provisions of S.5 of the Act. If as a measure of indulgence the same was actually enquired into by the Personal Assistant to the Land Acquisition Officer. at the time of the inspection of the land. If as a measure of indulgence the same was actually enquired into by the Personal Assistant to the Land Acquisition Officer. at the time of the inspection of the land. such enquiry does not clothe the 1st respondent with a right to a personal hearing: much the less. can it give the 1st respondent a right to have the result of the enquiry communicated." 8. An objection filed beyond thirty days of the publication of the preliminary notification under the Land Acquisition Act need not be considered by the authorities and no person can. therefore. approach this Court under Art.226 of the Constitution to compel consideration of the objections filed beyond this statutory period. The objections filed by the petitioner on 8-6-1981 are beyond the thirty days of the date of publication of the S.3 notification in March. 1981. Of course. when the notification is published in two newspapers. on two different dates. the later date of publication can appropriately be taken as the starting point for calculating the thirty days allowed for filing the objections. Even then. in this case. the objection is filed beyond thirty days of the last date of publication of the S.3 notification. namely. 29-3-1981. 9. But. contends counsel for the writ petitioner that the objections were filed within thirty days of the personal service of notice on him under R.3 of the Kerala Land Acquisition Rules. on 12-5-1981. This takes us to S.3(1) of the Act which reads thus: "3. Publication of preliminary notification and 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. or in two daily newspapers having wide circulation In that locality and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. and R.3 of the Kerala Land Acquisition Rules which reads thus: "Immediately after the publication of the notification under S.3. the Collector shall issue a notice staling that the land is needed or is likely to be needed. and R.3 of the Kerala Land Acquisition Rules which reads thus: "Immediately after the publication of the notification under S.3. the Collector shall issue a notice staling 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. the Taluk Tahsildar and the Village Officer." 10. The publication of the preliminary notification under S.3(1) of the Act is the foundation for filing objections by any interested person objecting to the acquisition of the land. Prior to Act 3 of 1981 the objections had to be filed within thirty days "after the issue of the notification." There were similar provisions in the Central Act also. But under the State amendment in 1981. the words 'issue of notification' were substituted by 'publication of the notification.' A similar amendment was made to the Central Act also in S.5A under Act 68 of 1984. S.3 of the Act provides (a) for publication in the gazette or in two daily newspapers having wide circulation and (b) for public notice of the substance of such notification to be given at convenient places. 11. Statutory provisions conferring powers on the Government for compulsory acquisition have to be strictly construed. The powers of the Government to enter the land and interfere with the possession of the owner can be exercised only after publication of the notification under S.3(1). The object is thus to give a clear notice to the owner of the 'intended entry' and the proposed acquisition. The provisions in S.3(1) are mandatory in nature. subserving a public interest and unless the twin conditions prescribed under the section (a) of a publication and (b) of a public notice are satisfied. the proceedings under the Land Acquisition Act cannot be continued. Failure to follow the mandatory requirements of S.3(1) therefore invalidates the acquisition proceedings. The provisions in S.3(1) are mandatory in nature. subserving a public interest and unless the twin conditions prescribed under the section (a) of a publication and (b) of a public notice are satisfied. the proceedings under the Land Acquisition Act cannot be continued. Failure to follow the mandatory requirements of S.3(1) therefore invalidates the acquisition proceedings. These are principles settled by the Supreme Court in several decisions and we shall content ourselves by referring only to the decision of the Supreme Court in Khub Chand v. State of Rajasthan (AIR 1967 SC 1074): "The provisions of a statute conferring power on the Government to compulsorily acquire lands shall be strictly construed." "The object underlying the said direction in S.4 is obvious. Under sub-s. (2) of S.4 of the Act after such a notice was given the officer authorised by the Government in that behalf could enter the land and interfere with the possession of the owner in the manner prescribed thereunder. The Legislature thought that it was absolutely necessary that before such officer can enter the land of another. the owner thereof should have a clear notice of the intended entry." "The statutory Intention is. therefore. clear. namely. that the giving of public notice is mandatory. If so. the notification issued under S.4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void." 12. Thus. the mandatory procedure prescribed under S.3 for the preliminary notification does not insist on any personal notice. Notice through two newspapers having wide circulation. and a public notice of the substance of the notification in the locality. alone are provided under the Act. R.3. relied on by the writ petitioner also does not insist on any personal notice. R.3 provides only for a notice to be published 'at convenient places in the said locality.' Construing a fairly similar rule framed in Gujarat under the Central Land Acquisition Act. the Supreme Court in State of Gujarat v. Panch of Nani Hamam's Pole (AIR 1986 SC 803) held: "Therefore. what R.1 contemplates is a notice to the interested parties as required under S.4(1) and S.4 (1) requires the notice to be notified at a convenient place in the said locality for information of the interested parties. It is. therefore. the Supreme Court in State of Gujarat v. Panch of Nani Hamam's Pole (AIR 1986 SC 803) held: "Therefore. what R.1 contemplates is a notice to the interested parties as required under S.4(1) and S.4 (1) requires the notice to be notified at a convenient place in the said locality for information of the interested parties. It is. therefore. clear that by reading S.4(1) with R.1 it could not be interpreted to mean that a personal notice to each and every interested person is the requirement of S.4 and in absence of such a notice the proceedings of acquisition will be invalidated. As discussed earlier. reading of S.4(1) with R.1 does not provide for an individual notice but only requires a notice as contemplated under S.4(1) to the interested persons." 13. In an unreported Division Bench ruling of this Court in WA No. 139 of 1982. following the above dictum of the Supreme Court. it wag held that individual notices of the preliminary notification were not required to be given under the Act or the Rules. Moreover. the rule itself insists that the objection has to be filed within thirty days of the issue of the notification and not that the objection should be filed within 30 days of the service of any notice under that rule. 14. It is. therefore. not possible to accept the contention of the writ petitioner that personal notice was contemplated under the Act and time for filing objections has to be calculated from the date of personal service of such notice. 15. But it is contended that the publication in the newspapers cannot be treated as the commencement of the right to file objections when S.3 itself insists on three modes of publication. This plea is. of course. met by stating that the publication contemplated under S.3 consists of either the publication in the gazette or the newspapers and when there is no publication in the gazette. the publication in the newspapers will fix the date of commencement of the right to object. It has to be remembered that S.3 does not limit the service of notice only by two modes: but insists on a third mode of notifying in the locality the substance of the notification. When thus there are three modes prescribed in S.3 itself. the publication in the newspapers will fix the date of commencement of the right to object. It has to be remembered that S.3 does not limit the service of notice only by two modes: but insists on a third mode of notifying in the locality the substance of the notification. When thus there are three modes prescribed in S.3 itself. it is necessary to ascertain the relevant or the crucial date on the basis of which alone the right to file objections and the period of thirty days during which it subsists can be accounted. 16. We have in this connection to note that while the thirty days for filing objections was to be calculated from the date of 'issue of notification' before 1981. the days have now to be calculated from the 'date of the publication' of the notification. Does this difference in language alter the essence of the right to file objections? We think not as would be evident from the reasons given by the Supreme Court in Deepak Pahwa v. Lt. Governor of Delhi (AIR 1984 SC 1721) while construing the expression "issue of notification" aid considering the content of the right to file objections. where it was observed thus: "Notice to interested persons of a proposed acquisition of land is given by publicising a notification to the effect that land in any locality is needed or is likely to be needed for any public purpose in two ways-first. by causing publication of the substance of the notification to be given at convenient places in the locality. There is no reason to confine the period of 30 days prescribed by S.5A to one mode. The period of 30 days may be reckoned from either the date of publication in the gazette or the date of public notice of the substance of the notification in the locality. whichever is later. In our view. that is the only reasonable and practical way of construing S.5A so as to advance the object of the provision. which is to provide a reasonable opportunity to interested persons to oppose the acquisition. We particularly notice that S.5A does not refer either to the date of publication in the Official Gazette or the date of public notice of the substance of the notification in the locality. It speaks of 'the issue of the notification'. This we consider is significant and. in the context. We particularly notice that S.5A does not refer either to the date of publication in the Official Gazette or the date of public notice of the substance of the notification in the locality. It speaks of 'the issue of the notification'. This we consider is significant and. in the context. the words 'the issue of the notification' can only signify the completion of the prescribed process-rather. the twin process of notifying the interested public of the proposed acquisition in the manner provided for by S.4(1). that is by publication in the Official Gazette and giving public notice in the locality." 17. The legislature took note of this decision. and decided not to curtail the right of filing objections and amended the Act only to clarify that the delay in the publication of the notification shall not affect the right to file objections. The objects and reasons for amending the State Act in 1981. so far as they are necessary for our purpose. are stated thus: 'According to S.5 of the Act. any person interested in any land notified under sub-s. (1) of S.3 may file objections to the acquisition of such land within thirty days after the issue of the notification. The delay in the publication of the notification very often deprives the persons interested in the land of their right to file objections within the prescribed period. It was therefore considered necessary to safeguard such right of the persons interested in the land by permitting them to file their objection within thirty days after the publication of the notification". 18. S.5 of the Act is intended to provide a reasonable opportunity to the interested persons to object to the acquisition. This opportunity arises from the date of publication of the preliminary notification and lasts for thirty days. S.3 thus provides the nodes of publication of this notification. The publication may be it the gazette or in two newspapers having wide circulation. The publication has also to be effected by public notice of the substance of the notification in the locality. Public notice contemplated under S.3 in any of the three modes is publication of the notification. When thus the Act provides for three modes of publication. the thirty days period for filing objections can be calculated from the date of last of the publications. as otherwise. Public notice contemplated under S.3 in any of the three modes is publication of the notification. When thus the Act provides for three modes of publication. the thirty days period for filing objections can be calculated from the date of last of the publications. as otherwise. the necessity and utility of the last publication have no relevance or significance and the content of reasonable opportunity loses its functional efficacy. It is true that the section refers to publication in the gazette and in the newspapers and does not expressly refer to the public notice in the locality as publication. The absence of the word 'publication' in S.3 to describe the mode of service of public notice does not detract from the pattern of communication of the ratification to the public in general and is thus of no consequence in the interpretation of the provisions. Public notice of the preliminary notification has been construed as publication by the Supreme Court in State of Mysore v. Abdul Razak (AIR 1973 SC 2361): "The publication of the notice in the locality is a mandatory requirement. It has an Important purpose behind it. In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under S.5A. which is very valuable right." In this appeal and in the Original Petition. the writ petitioner had no case that there was no public notice as contemplated under S.3. He did not give the date of publication of the notice in the locality. He had no case that he filed the objections within thirty days of the public notice. His only case was that he filed the objections within thirty days of the personal notice under R.3. We have already held that the period has to be calculated from the date of publication and not from the date of any personal service. when none is contemplated under the Act or the rules Thus it has to be held that the objections filed on 8-6-1981 was clearly beyond the statutory period of thirty days and the authorities were not bound to consider those objections and this Court cannot compel them to consider them. The direction of the learned single judge that the objection filed on 8-6-1981 has to be considered cannot stand. 19. The direction of the learned single judge that the objection filed on 8-6-1981 has to be considered cannot stand. 19. But the learned judge has adverted to another aspect to compel consideration of the objection. There was an earlier notification under S.3 on 28-6-1976 and a declaration under S.6 on 21-7-1977. The declaration was challenged in OP. No. 4178 of 1977 before this Court and by judgment dated 7th November. 1978. this court set aside the declaration and directed a fresh consideration of the objections. By the time the objections were considered. the period of two years fixed under the Act for issuing a declaration pursuant to S.3 notification in 1976 expired as S.6 expressly stated. "Provided that no declaration in respect of any particular land covered by a notification under Sub-s. (1) of S.3 shall be made after the expiry of two years from the publication of such notification". It was under these circumstances that the authorities initiated de novo proceedings by publishing afresh notification under S.3 on 29-3-1981. With respect to the learned single judge we cannot agree that there was "a conscious attempt by the respondents to scuttle a direction that the objections should be considered afresh by the Board of Revenue". We do not thick that there is any attempt to overreach the orders of this Court. Compliance of the directions issued by the learned judge now after quashing the declaration already issued on 27-1-1983 will also be an exercise in futility as no declaration can be now issued after three years of the S.3 notification. (The two year period fixed earlier was substituted by 3 years by the amendment in 1981). 20. Not having filed the objections under S.5 of the Kerala Land Acquisition Act within the prescribed time. the writ petitioner cannot seek relief under Art.226 of the Constitution to compel consideration of his objections or to quash the declaration issued under S.6. The land is sought to be acquired for a public purpose and there is no challenge on that aspect. The writ petition is therefore liable to be dismissed. In the result. this writ appeal is allowed. The judgment of the learned single judge is set aside and the Original Petition no. 6849 of 1983 is dismissed; but in the circumstances of this case. the parties shall bear costs. Appeal allowed.