Gopinathan Nair v. Union of India — 1999 DIGILAW 537 (KER)

Judgment :- G. Sasidharan, J. In this Original Petition, the proceedings for acquiring the property of the petitioners are challenged. The petitioners would say that petitioners 1 and 2 have property in Sy. No. 2198 and the 3rd petitioner owns property in Sy. No. 1801 of Pattom Village, Thiruvananthapuram. The allegation in the petition is that a detailed town planning scheme for Plamood area, Thiruvananihapuram, for widening the National Highway 47 from Pattom to P.M.G. Junction was submitted before the Government of Kerala on 5.8.1991 by the 4th respondent Chief Town Planner, Thiruvananthapuram, which was approved by the State Government. The petitioners would say that on the influence of the 9th respondent from whom also the property is proposed to be acquired now certain alterations in the road alignment is proposed to be made so that only a small portion of his property would be acquired. Ext. P3 is a notice published by the 3rd respondent, Thiruvananthapuram Development Authority, under S.13 of the Town Planning Act. The definite case of the petitioners is that if it is necessary to vary the town planning scheme, it could be done only by a subsequent scheme published and sanctioned in accordance with the provisions of S.13 of the Town Planning Act. 2. On 19.8.1998, a notification under Ss.4(1) and 17(4) of the Land Acquisition Act, here-in-after referred to as 'the Act', was published in a news paper. Ext. P4 is the Kerala Kaumudi News Paper in which the above notification was published. The land acquisition proceedings are sought to be quashed by saying that S.6 declaration was not made within one year of the publication of the notification under S.4(1) of the Act. According to the petitioners, even though the notification under S.4(1) was on 19.8.1998, declaration under S.6 was made only on 24.8.1999. There is also a case for the petitioners that for the purpose of S.17(4) of the Act, the "appropriate government" is the Central Government and since there is no specific direction from the Central Government under S.17(4) of the Act, the emergency provision in relation to the acquisition of land cannot be invoked by the State Government. There is also a case for the petitioners that for the purpose of S.17(4) of the Act, the "appropriate government" is the Central Government and since there is no specific direction from the Central Government under S.17(4) of the Act, the emergency provision in relation to the acquisition of land cannot be invoked by the State Government. The acquisition being for widening the National Highway the acquisition is for the purpose of the Union and that is why the petitioners would say that the "appropriate government" being the Central Government, specific direction from the Central Government under S.17(4) of the Act is necessary. 3. In the counter affidavit filed by the 7th respondent, it is stated that notification under S.4(1) of the Act was published in the Gazette on 29.7.1998 and that it was published in Kerala Kaumudi and Deshabhimani dailies dated 19.8.1998. It is also stated that notification under S.4(1) was published in the locality on 20.8.1998. According to the 7th respondent declaration under S.6 was published in the Kerala Gazette on 18.8.1999 and the same was published in the Kerala Kaumudi and Deshabhimani dailies on 24.8.1999. 4. In Eugenia Misquita v. State of Goa (AIR 1997 SC 3939) it was held that for the purpose of calculating the limitation prescribed under proviso to S.6(1)(ii) for making declaration under S.6, it is not the last of the publication in the series of publication prescribed by S.6(2) that should be taken into account, but the publication that was made in the first instance under S.6. It is also held that the making of declaration under S.6 is complete for the purpose of proviso to S.8(1)(i) and (ii) when it is published in the official gazette. In paragraph 8 of the above judgment of the Supreme Court, it is stated that it is now well settled that the last of the dates in the series of the publications made under S.4(1) of the Act is the relevant date to reckon the starting point of limitation for the purpose of the proviso to S.6(1)(ii). In the light of the above facts, it could be seen that declaration under S.6 was within one year of the publication of notification under S.4(1) of the Act. 5. In the light of the above facts, it could be seen that declaration under S.6 was within one year of the publication of notification under S.4(1) of the Act. 5. The next point urged by the learned counsel appearing for the petitioners is that the State Government had no power to in voke S.17(4) of the Act for the reason that since the acquisition is for the purpose of the Union, the appropriate Government which can invoke the emergency clause is the Central Government. There is Ext. P8 notification issued by the Government of India in which it is stated that in exercise of the powers conferred by clause (1) of Art.258 of the Constitution of India and of all other powers enabling him in that behalf and in super session of all previous notifications issued in that behalf, the President, with the consent of the Government of Kerala, entrusted the Government of Kerala the functions of the Central Government under the Land Acquisition Act, 1894, except the function exercisable by the Central Government under the proviso to sub-s.(1) of S.55 of the Act. The argument advanced to the learned counsel appearing for the petitioners is that under Ext. P8, only the functions of the Central Government are given to the State Government in respect of the Act and there is no conferment of executive powers of the Central Government on the Government of Kerala. He would maintain that in so far as the executive powers of the Central Government are not given to the State of Kerala, the State Government is not having the power to invoke the emergency clause in the Act for acquiring property for the Union. Art. 73 of the Constitution of India says that subject to the pro visions of the Constitution executive power of the Union shall extent to the matters with respect to which the Parliament has power to make laws. The proviso to Art.73(1) says that the executive power referred to in sub-clause (a) shall not save as expressly provided in the Constitution or any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. The proviso to Art.73(1) says that the executive power referred to in sub-clause (a) shall not save as expressly provided in the Constitution or any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. On pointing out the above provision in the Constitution, the submission made is that the executive power which the Union is having for the reason that the Parliament has power to make laws in respect of at matter, cannot be exercised by the State unless there is specific conferment of that power on the State. 6. Ext. P8 notification was issued by the Central Government in exercise of the powers conferred by clause (1) of Art.258 of the Constitution of India. Art.258 says that notwithstanding anything contained in the Constitution the President may with the consent of the Government of a State entrust to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends. In Art.258(2) the provision is that a law made by Parliament which applies to any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties or authorise the conferment of powers and the imposition of duties upon the State or officers and authorities thereof. Entry 12, in List HI, made the acquisition of the property a subject of concurrent legislative power and the Parliament has the power to legislate in respect of the acquisition of the property for the purpose of the union. In the light of what is stated in Art.73(1)(a), the executive power of the union extends to the acquisition of property for the Union. 7. Exercising legislative power of the Union entrustment of functions to the State or to its officers can be made by making provisions in the statutes. But the Constitution in Art.258(1) invests the President with authority to entrust to the Government of a State or to its officers functions in relation to any matter to which the executive power of the Union extends. But the Constitution in Art.258(1) invests the President with authority to entrust to the Government of a State or to its officers functions in relation to any matter to which the executive power of the Union extends. Even without making provisions in the Statute in respect of entrustment of functions, the functions of the Union will stand entrusted to the Government of a State or to its officers on issuance of a Presidential notification. Even though there is no entrustment of functions by provisions in a statute the notification issued under Art.258(1) has the effect of amending the statute in respect of entrustment of the functions to the Government of a State or to its officers. Issuing of a notification under Art.258(1) giving power to the State Government to exercise powers that the Central Government are having will be having the force of law. 8. For invoking the emergency clause in the Land Acquisition Act, entrustment of executive powers of the Central Government to the State Government is not necessary. Where functions under the Land Acquisition Act are entrusted to the State Government under Ext. P8 notification, invoking of emergency clause under the Act being a function, the Government have under the Act, State Government can exercise that function. The effect of the notification issued by the Central Government in the name of the President would be that wherever the expression "appreciate government" occurs in the Act in relation to the provisions for acquisition of land for the purpose of the Union, that expression would mean the Government of Kerala. In S.17 of the Act the term "appropriate government" is used and by virtue of Ext. P8 notification the appropriate government in respect of the acquisition of land for the National Highway would be the Government of Kerala. 9. In respect of the argument of the learned counsel appearing for the petitioners that only functions are given to the State Government as envisaged in Art.258(1) of the Constitution, and the State Government cannot exercise the powers it has to be said that what is meant by function is the acts which have to be done for exercising the powers the State Government gets as per Ext. P8 notification. Function is something which has to be done for the purpose of exercising the powers an authority i s having and here under Ext. P8 notification. Function is something which has to be done for the purpose of exercising the powers an authority i s having and here under Ext. P8 notification, the functions of the Central Government are entrusted to the State Government. A reading of Ext. P8 would go to show that all the functions exercisable by Central Government except under the proviso to sub-s.(1) of S.55 of the Act are entrusted to the Government of Kerala. That would clearly indicate that the functions exercisable by the Central Government under S.17(4) of the Act also stand entrusted to the Government of Kerala. The Government of Kerala was quite competent to invoke the emergency clause in S.17 of the Act. 10. In Ramniklal N. Bhutta v. State of Maharashtra, (1997) 1 SCC 134, the Supreme Court observed that the power under Art.226 is discretionary and it will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. The further observation made in the above decision is that in the matter of land acquisition for public purposes, the interest of justice and the public interest coalesce. The Supreme Court further held in the above decision that the larger public interest of necessity of rapid acquisition of land for creating basic infrastructure facilities for development would be kept in mind while quashing the acquisition proceedings or granting stay. In Susanna v. State of Kerala (1991 (2) KLTSN 3, case No. 2) this Court also held that the power under Art.226 is discretionary and it will be exercised only in furtherance of interest of justice and Court shall not interfere with acquisition proceedings unless there are compelling circumstances. The present case is one i n which there is no compelling circumstance which would justify interference of this Court in the acquisition proceedings. For the above reasons, this Original Petition is liable to be dismissed and I do so.