RAJAGOPALAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(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.) 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. 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.