LONAPPAN Vs. SUB-COLLECTOR PALGHAT

JUDGEMENT

(1.) This is an appeal against the order of a learned Single Judge of the High Court of Madras dismissing an application under Art.226 of the Constitution of India. The appellant is the owner of R. S. No. 125/7 in Thaikad Amsam, Ponnani Taluk. His house is situated in the adjacent land, R. S. No. 125/12. Both these survey numbers, R. S.125/7 and 125/12, are enclosed by one fence all round and form part of the compound in which the appellants house is situated. But a portion of R. S.125/7 has been leased by the appellant to one Appu for the purpose of conducting a school, known as the Thaikad South Higher Elementary School. There is a dispute between Appu and the appellant as to who put up the school building in R. S. No. 125/7 and to whom that building belongs According to the appellant, the building was put up by him and belongs to him and Appu has been allowed only the use of it. According to Appu the building has been put up by him and belongs to him. This dispute has led to a civil suit between them, and we were told at the time of the hearing of this appeal that the said suit is now pending in second appeal in the High Court. While that suit was pending in the Trial Court Appu moved the authorities of the Education Department to acquire 1. 12 acres of land in R.S. No. 125/7 for the construction of a building and for a play ground and a garden for the school, and on the recommendation of the Education Department the Government issued a notification on 5-8-1952 under S.4(1) of the Land Acquisition Act proposing to acquire an area of 1. 12 acres in the said survey number for the school. Notice was then issued to the appellant calling for objections, if any, under S.5A of the Land Acquisition Act to the proposed acquisition, and in that notice it was stated that the enquiry under S.5A would be held on 23-9-1952. On 23-9-1952 the appellant appeared with his pleader before the Sub Collector of Palghat, who was the officer appointed by the Government to exercise the powers of Collector in this case, and filed a written objection contending that Appu had moved the authorities to make the acquisition out of spite towards him, that there was no bona fide necessity for the acquisition, that the proposed acquisition would cause much harm and inconvenience to the appellant as the land proposed to be acquired was part of his residential compound, and that if it was necessary to acquire any land for the purposes mentioned in the notification he (the appellant) was ready to give other suitable lands in the vicinity. According to the appellant, on 23-9-1952 he and his pleader also prayed to the Sub-Collector for an adjournment to enable them to adduce evidence regarding these objections but the Sub-Collector refused the prayer for adjournment. On 28-9-1952 the Sub Collector submitted his report under S.5A of this Act overruling the appellants objections and recommending the acquisition. Thereupon, the appellant made a complaint to the District Collector of Malabar against the Sub Collectors action. But this complaint also proved futile, and ultimately the Government of Madras published a notification, Ms. No. 2064 Education, dated 4th September, 1953, in the Fort St. George Gazette, Part I-B, at page, 632, dated 16th September 1953, ordering acquisition of the land as per the earlier notification of 5-8-1952. The application under Art.226 of the Constitution was for issuing a writ of certiorari or any other appropriate writ, direction or order calling for the records of the proceedings relating to the notification of the Government of Madras, Ms. No. 2064 Education, dated 4th September, 1953, and published at page 632 of Fort St. George Gazette, Part I-B dated 16th September, 1953, and quashing the proceeding and granting other appropriate reliefs.

(2.) The appellants main contention in the application under Art.226 was that the Government proceedings and order for the acquisition of the land were without jurisdiction as the provisions of S.5-A of the Land Acquisition Act and the Rules framed thereunder had not been complied with by the Sub-Collector. According to him, on receipt of the objections filed by him under S.5-A the Sub-Collector was bound by R.3 to give notice of those objections to the Education Department, at whose instance steps for acquisition had been taken and ascertained their views, and after ascertaining their views the Sub-Collector should have given an opportunity to the appellant to adduce evidence regarding his objections if the departments view was against him, and in submitting the report to the Government the Sub-Collector should have sent up the views of the Education Department also. It is contended that since the Sub-Collector has omitted to do these things the appellant has been prejudiced in as much as he has been deprived of an opportunity which he was entitled to have, under the law, of having his objections considered by the Education Department and of having the views of that department on those objections before the Government when they passed final order for the acquisition. It is also contended that the action of the Sub-Collector in refusing the prayer for adjournment made on 23-9-1952 has also resulted in causing prejudice to him. The learned Judge who heard the writ application repelled these contentions and dismissed the appellants application, and hence the appeal.

(3.) In support of his allegation that he and his pleader had asked the Sub-Collector for an adjournment on 23-9-1952 for the purpose of enabling them to adduce evidence, the appellant relies upon the affidavit of his pleader. An Assistant Secretary to Government has filed a counter affidavit denying this allegation, and relying upon that counter affidavit it is contended on behalf of the State that there was no application for adjournment on 23rd September, 1952 and that the appellant had not then desired to adduce evidence before the Sub-Collector. The appellants counsel urges that the denial in the Assistant Secretarys counter affidavit cannot be accepted as correct and acted upon as he could not have had any direct knowledge of what had happened before the Sub-Collector on 23-9-1952 and that in the absence of a denial of the appellants allegation by the Sub Collector himself or any officer of Government who was present at the time before the Sub-Collector the allegation in the affidavit of the appellants pleader must be accepted as true. The decision on this disputed question of fact, namely, whether an application for adjournment for adducing evidence was made before the Sub-Collector or not, is not very material for the disposal of this appeal, for, in our opinion, the Sub-Collector has committed in this case a very flagrant breach of the provisions of law made for the express purpose of safe-guarding the lawful interests of the owners of the properties and the case, therefore, merits the exercise of the jurisdiction under Art.226 of the Constitution.