Holding

The requisition was made at the instance of the private school manager, not the Education Department, so the requirement to serve notice to the department under Rule 5(b)‑(c) does not apply and the declaration under Section 6 is valid.

Summary

Abraham, the owner of land in Thottapuzhasseri, challenged a declaration under Section 6 of the Kerala Land Acquisition Act, 1961 that authorised acquisition of his land for a playground of M.M.A. High School. He argued that the acquisition was mala fide and that the declaration was invalid because the Education Department, which certified the public purpose, was not served notice of the hearing of objections as required by Rule 5(b) and 5(c) of the Kerala Land Acquisition Rules, 1963. The Kerala High Court dismissed the writ, holding no procedural breach. On appeal, the Supreme Court held that the requisition was made by the private school’s manager, not by the Education Department; consequently, the statutory requirement to serve notice to the department did not arise. The Court found no violation of Rule 5(b), 5(c) or Rule 6 and affirmed the validity of the declaration. The appeal was dismissed.

Issues considered

Whether non‑service of notice to the Education Department, as mandated by Rule 5(b) and 5(c) of the Kerala Land Acquisition Rules, 1963, invalidates a declaration under Section 6 of the Kerala Land Acquisition Act, 1961 when the requisition is initiated by a private educational institution’s manager.

Legislation cited

Kerala Land Acquisition Act, 1961s. 3, s. 5, s. 6
Kerala Land Acquisition Rules, 1963s. 5(b), s. 5(c), s. 6

Subjects

Land acquisitionPublic purposeNotice requirementNatural justiceKerala Land Acquisition ActRule 5(b) and 5(c)Private educational institutionAppeal dismissed

Judgment

ABRAHAM MATIIAI A
v.
't SUB-COLLECTOR (LAND ACQ. OFFICER) AND ORS.

JULY 27, 1990

[B.C. RAY AND A.M. AHMADI, JJ.] B

Kera/a Land Acquisition Act, 196 I-Kera/a Land Acquisition
Rules 1963-Section 6/ Rules 5(b)(6) and 6-Land requisitioned at the
r-
'
instance of private school-Whether officer of the Department to he
heard on objections by the owner.

The appellant owned land bearing R.S. Nos. 44 /ll and 44 f20 in
c
village Thottapuzhasseri in Kerala State. Respondent 3, M.M.A. High
School moved an application under Sub-clauses (a) and (b) of Clause (i)
'..,,• of Section I of Chapter 6 of the Land Acquisition Manual before the
State's Education Department praying that the aforesaid land be
requisitioned for a public purpose for construction of a playground for D
the school. The State authorities after complying with the requirements
of the Kerala Land Acquisition Act, 1961, issued a declaration under
Section 6 of the Act stating the lands described therein were needed for
a public purpose viz. construction of a playground for the school. The
appellant challenged the validity of the declaration hy filing a writ
petition before the High Court, contending, that (i) the proposal to E
,~
acquire the property was mala fide; (ii) that the declaration was
bad as no notice was issued to the Education Departmen~ as required by
Rule S(b) and (c) of the Kerala Land Acquisition Rules and (iii) that the
appellant needed the property for construction of houses for his sons.

The High Court dismissed the writ petition holding that there was no F
violation of the provisions of Rule S(b) and (c) of the Rules nor was there
any infringement of Rule 6. Hence this appeal by the appellant by certificate.
Dismissing the appeal, this Court,
HELD: The requisition in the instant case, was not made at the
instance of the Government Department but at the instance of the G
Manager, private school and the Education Department merely has
given a note certifying that the purpose of the requisition is a public
purpose and that the school agreed to bear the entire costs. [544C-D]
---""'-~

It cannot therefore be contended that the requisition bas been
made by the Education Department or by its officer for acquisition of H
the land in question. [54 lC]
535
536 SUPREME COURT REPORTS [1990] 3 S.C.R.

A The High Court has rightly held that there has been no violation
of Rule S(b) and (c) or 6 of the Rules. [541F] t

That it is inappropriate to issue notice to the Education Officer or
Departmental Officer who certified about the public purpose as well as
readiness of the school authority to pay the entire money for acquisition
B and failure to issue such a notice to the Departmental Officer would not
amount to violation of the principles of natural justice and infringement
of the said Rule S(b) and (c) of the said Rules. [541F-G]

Lonappan v. Sub-Collector, Palghat, ' AIR 1959 Kerala 343;
State of Madras and Ors. v. Periakkal and Ors., AIR 1974 Madras 383
C and State of Mysore and Ors. v. V.K. Kangan and Ors., [1976] I SCR
369 at 371, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 186 •,
of 1976.

D Appeal by Certificate from the Judgment and Order dated
27.10.1975 of the Kerala High Court in O.P. No. 3743 of 1973.

A jit Pudussery and B .P. Singh for the Appellant.

A.S. Nambiar, K.R. Nambiar, V.J. Francis and N.M. Popli for ,1.,
IE the Respondents.

The Judgment of the Court was delivered by

RAY, J. The appellant who is owner of land comprised in R.S.
Nos. 44/11 and 44/20 in village Thottapuzhasseri in Alleppey District,
F assailed the validity of the declaration made under Section 6 of the
Kerala Land Acquisition Act, 1961 (Act 21 of 1962) made by the 2nd
Respondent, Board of Revenue, Kerala State on 25.9.1973 and
published in Kerala Gazette dated October 16, 1973 stating that the
lands described therein are needed for a public purpose namely for a
playground for M.M.A. High School and directing the Revenue Divi-
G sional Officer, Changannur to order for acquisition of the same.

The grounds on which the challenge was made in the writ peti-
tion inter alia were that the property in question was mortgaged with
the Maramon Marthomite Church, as the Church refused to return the
property on accepting the money, the appellant filed a suit for redemp-
H tion of the mortgage which was ultimately decreed and appellant got
ABRAHAM v. SUB-COLLECTOR [RAY, J.[ 537

possession of the property on October 8, 1973. During the pendency of
the suit the church authority moved the educational authorities as well A
as the Sub-Collector for acquisition of the property for the school in
order to wreak vengeance on the petitioner-appellant. It has also been
alleged that the purported proposal to acquire the said property was
made mala fide. The land was situated about 3 furlongs away from the
school and it was not convenient to be used as playground of the B
school, that there were more suitable land available for purpose of
playground, that the land was required by the owner for purpose of
constructing buildings for his sons. The appellant raised all those
objections within the prescribed time on receiving notice under section
5 of the said Act. No notice was issued to the Education Department
as required under Rule 5{b) & (c) of the Kerala Land Acquisition
Rules and the objection made by the appellant was decided by the c
respondents without hearing the Government Department or its rep-
resentative. As such the imugned declaration is illegal and bad and the
proceeding for acquisition is also illegal and unwarranted. The writ
petition being O.P. No. 3743 of 1973 was dismissed by the High Court
holding that there was no violation of the provisions of Rule 5(b) & ( c) D
of said Rules nor there was infringement of Rule 6.

The instant appeal is on a certificate granted by the High Court
under Section 133( 1) of the Constitution of India.

The sole question that has been agitated before this Court by the E
learned counsel for the appellant is that provisions of Rule 5(b) & (c)
of Kerala Land Acquisition Rules, 1963 are mandatory and the notice
of the date of hearing of objection filed by a person interested in the
land has to be given to the Departmental Officer requiring the land
and failure to serve such notice will invalidate the declaration made
under Section 6 of the Kerala Land Acquisition Act, 1961 in short the F
said Act. Several decisions have been cited at the Bar in support of this
contention. The provisions of Section 5 read with Rule 5(b) & (c) of
the said Rule have not been complied with in hearing objections.

The learned counsel for the respondent has, on other hand, sub-
mitted that the proposal for acquisition of the land in question for G

-- play-ground of the said school was made at the instance of the Manager
of the- School, the 3rd respondent. The said proposal was considered
by the Education Department which certified that the acquisition was
for a public purpose viz for playground of the said school and also that
the school agreed to place the necessary funds for payment of compen-
sation for acquisition of the said land. H
538 SUPREME COCRT REPORTS I1990] 3 S.C.R.
The appellant on receiving the notice under Section 3 of the said
A
Act filed an objection to the proposed acquisition of the said lands in
accordance with the provision of Section 5 of the said Act as well as
under Rule 3 of the Land Acquisition Rules, 1963. The 1st respondent
did not issue any notice of the objection filed by the appellant
(petitioner) to the Education Department as required under Section 5
B of the Act and Rule S(b) & (c) and 6 of the Rules framed under the
said Act though notice was issued to Respondent No. 3, the Manager,
M.M.A. ·High School, Mammon. The 1st respondent, Sub-Collector
(Land Acquisition Officer) after hearing the petitioner-appellant and
his lawyer as well as the representation of the 3rd respondent submit-
ted a report to the respondent No. 2, Board of Revenue, Kerala State
recommending for the acquisition of the said land for the purpose of
c playground for the said High School. The Board of Revenue, the
respondent No. 2, after considering the report made a declaration
under Section 6 of the said Act stating that the land specified in the
notification under Section 3 of the Act is needed for a public purpose
and the said declaration was published in the Kerala Gazette dated
D 16th October, 1973 and directed the Revenue Divisional Officer,
Changannur to take order for acquisition of the lands. It is convenient
to mention that the procedure for requisition for acquiring land has
been laid down by the Government in the Land Acquisition Manual.
Sub-Clauses (a) & (b) of Clause (i) of Section 1 of Chapter 6 of the
Manual is in these terms: ~.

E
"(i)(a) Application in all cases in which land is required by
a department of Government other than the Revenue
Department should be sent by the Departmental Officer
authorised in this behalf in the prescribed form (Form 2-
Appendix II) to the District Collector or to the Special
F Land Acquisition Officer, if any, appointed for the pur-
pose. In the application it should be specifically stated
whether the sanction of the competent authority exists for
the work for which the land is required and for the acquisi-
tion of the land and whether necessary funds have been
provided in the budget for meeting the cost of acquisition.
G
(b) Application from associations or private institutions
other than educational institutions, should be sent in the
prescribed form to the District Collector. When land is
required by a private educational institution, the Manager
of the institution should send an application in the pres-
H cribed form to the District Educational Officer concerned
ABRAHAM v. SUB-COLLECTOR (RAY, J.l 539

who will forward it to the District Collector with a certifi-
~--
A
cate from the departmental officer authorised in this
behalf, to the effect that the acquisition is necessary as the
land is required for a public purpose and that the private
educational agency has agreed to meet the expenditure."

It is evident from this procedure that in case of land being B
required by the private educational institution, the Manager of the
institution shall send the application for acquisition of the land. The
Education Department has to consider the application and to give a
certificate to the effect that there was a public purpose for which the
proposed acquisition is asked for and the private educational institu-
tion is agreeable to meet the entire expenditure for acquisition of the
said property. In the instant case Education Department after consi-
c
dering the requisition made by the Manager of the said school certified
about the public purpose for which the land in question is required to
be acquired and also that the school authority is ready and willing to
meet the entire costs of the acquisition. As has been stated hereinbe-
fore that the appellant, the owner of the said plots of land submitted D
his objection to the application for acquisition mainly on four grounds
inter alia that the proposal for acquisition of the land has been made by
the Manager of the said school malafide in as much as the said land was
mortgaged previously with the Church authorities and subsequently
the mortgage was redeemed on the basis of a decree passed by the
court in a suit and the said land was taken possession of by the applic- E
ant in execution of the said decree. Secondly, this land is situated
about 3 furlongs away from the said school and so it is not convenient
to use the land for a play-ground of the school, thirdly, there are other
lands available in the locality which can be conveniently used for this
purpose, fourthly, it has been stated in the objection petition that the
land in question remains submerged during certain part of the year and F
so the same is not convenient for the purpose of playground of the
school. The 3rd respondent on receiving notice of the objections
appeared before the Sub-Collector, Respondent No. 1 and reiterated
that the objections are all without any basis and the land was needed
for the playground of the school and the said land is being used for this
purpose for a period of about 10 years. The respondent No. 1 after G
inspecting the site and after considering the objections and hearing the
appellant and his lawyer submitted a report recommending for acquisi-
tion of the said land. It will be evident from the inquiry report made
under Section 3 of the said Act that the lands is in possession of the
School and it is being used as its playground for the last 10 years. The
Management of the said School has no other alternative but to request H
540 SUPREME COURT REPORTS [1990] 3 S.C.R.

for acquisition of the said land for the above purpose. It is also stated
A
in the report that the proposed land is at a distance of 3 furlongs and 'f
there is no other convenient and suitable land more nearer to the
school.

On considering this report the respondent No. 2, Board of
B Revenue made a declaration which has been notified in the Kerala
Gazette on October 16, 1973 and directed proceeding for acquisition
of the said land.

It is, therefore, clear that the Manager of the school submitted a
requisition to the Education Department for a certificate as to the
public purpose for acquisition of the said land for play-ground of the
c school and also to the effect that the school has agreed to meet the
entire expenditure in due compliance with the procedure laid down in
the Kerala Land Acquisition Manual. The Education Department ---~
made the necessary recommendations. The proposal for the acquisi-
tion of the plot was made at the instance of the Manager of the said
D private educational institution the respondent No. 3 and not by the
Education Department. Section 5 enjoins that any person interested in
any land which has been notified under sub-clause 1 of Section 3 as
being needed or likely to be needed for a public purpose may, within
30 days after publication of the notification, object to the acquisition
of the land. It has been further provided therein that objections shall ;< .
E be made to the Collector in writing and the Collector on receiving the
objections shall give the objector an opportunity of being heard either
in person or by counsel and shall after hearing all such objections and
after making such further enquiry, if any. as he thinks necessary either
made a report in respect of the land which has been notified undtr
Sub-Section 1 of Section 3 or make different reports in respect of
F different parcels of such land to the Board of Revenue where the
notification under Sub-clause 1 of Section 3 has been made and
published by the Collector. Rule 3 of the Kerala Land Acquisition
Rules clearly states that after publication of the notification under
Section 3, the Collector shall issue a notice stating that the land is
needed or is likely to be needed, as the case may be, for a public
G purpose and requiring all persons interested in the land to lodge before
the Collector within 30 days after the issue of the notification, a state-
ment in writing of their objections, if any, to the proposed acquisition
Rule 5(b) enjoins that after receiving the objections from a person
interested in the land within prescribed time the Collector shall fix a
date for hearing the objections and "give notice, thereof to the
H objector as well as to the departmental officer or company or the local
ABRAHAM v. SUB-COLLECTOR {RAY, J.J 541

authority requiring the land, where such department is not the
A
Revenue Department.

On a perusal of this provision it is clear that notice of the date of
hearing of the objections has to be served not only on the objector but
also to the Departmental Officer or Company or the local authority
requiring the land, that is, where the requisition for acquisition of the B
land is made by the Departmental Officer, the Departmental Officer
who requires the land for acquisition has to be served with a notice of
the date of hearing of objections. In the instant case the requisition
was made not by the Education Department but by the Manager of
M.M.A. High School, Maramon. The Education Department merely
certified about the requirement of the land in question for a public
purpose i.e. for playground of the school and that the entire cost of the c
requisition is agreed to be borne by the school.

The sole question agitated in regard to the validity of the declara-
tion is that no notice of the date of hearing of objection has been
served on the Education Department and as such the Education D
Department has no opportunity to consider the objections raised by
the appellant and also to say whether the land in question was suitable
for acquisition or whether other lands are available for this purpose for
which the proposed acquisition is required to be made and non-service
of such a notice invalidates the· declaration made under Section 6 of
the Act by respondent No. 2. It is only the private school as well as the E
owner of the land who are required to be informed as to the date when
the objections will be heard under Section 5 of the said Act and only
they are to be heard. The High Court has rightly held that in the instant
case there has been no violation of Rule 5(b) & (c) of the Rules. The
High Court has further held that there has not been any infringement
of Rule 6. It has also been held that it is inappropriate to issue notice F
to the Education Officer or Departmental Officer who certified about
the public purpose as well as readiness of the School authority to pay
the entire money for <:icquisition and failure to issue such a notice to the
Departmental Officer would not amount to violation of the principles
of natural justice and infringement of the said Rule 5(b) & (c) of the
said Rules. We have mentioned hereinbefore that the proposal for G
acquisition of the land was made by the Manager of the school for the
purpose of playground of the school and the requisition was thus made
at the instance of the school. The Education Department merely
certified about the public purpose and also about the willingness on
the part of the school authority to bear the entire cost of acquisition.
The land is not sought to be acquired at ihe instance of the -Depart- H
542 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

A
mental Officer and as such it has been rightly found by the High Court
that non service of notice of hearing of the date of objection on the
Education Department does not per se infringe the provisions of Rule
5(b) & (c) of the Kerala Land Acquisition Rule, 1963. We do not find
any flew in the judgment rendered by the High Court.

B Several decisions have been cited at the Bar to impress upon us the
point that Rule 5 (b) & ( c) read with Section 5 of the said Act are
mandatory and non-compliance therewith will render the declaration
invalid and the entire acquisition proceedings on the basis of the said
declaration will be illegal and unwarranted. In the case of Lonappan v.
Sub-Collector, Pa/ghat, AIR 1959 Kerala, 343 one Appu moved the
authorities of the Education Department to acquire 1.12 acres of land
c in R.S. No. 125/7 for the construction of a building and for a play
ground and a garden for his school. On the recommendation of the
Education Department the Goverrunent issued a notification under
Section 4( 1) of the Land Acquisition Act proposing to acquire an area
1.12 acres in the said survey for this school. Notice was issued to the
D appellant calling for appellant Lonappan, the owner of the land, for
filing objections, if any, under Section 5-A of the Land Acquisition
Act to the proposed acquisition and in that notice it was stated that the
enquiry under Section 5-A would be held on 23.9.1952. The Sub-
Collector after hearing the appellant and his objections overruled his
objections and recommended acquisition. The appellant thereafter
E made application under Article 226 of the Constitution for a writ of
certiorari and for other directions for quashing the proceedings and for
granting other reliefs, on the ground that under Section 5-A the Sub-
Collector was bound by Rule 3 to give notice of those objections to the
Education Department at whose instance step for acquisition has been
taken. It was held that the object of Rule 3(b) of the Rules made by
F the Madras Government under See>tion 55( 1) of the Act for giving
notice to the concerned department before hearing of objections filed
under Section 5-A is not merely to give the department an opportunity
to maintain or support its original requisition but also to provide an
opportunity for the original requisition being reviewed or reconsidered
by the department in the light of the objections raised by the owner of
G the land and other persons interested in it.

In State of Madras and Ors. v. Periakkal and Ors., AIR 1974
Madras 383 the land acquisition proceedings were started at the
instance of the Harijan Welfare Department for the purpose of con-
structing houses for the Harijans. Notice of the date of hearing of the
H . objections filed by the respondent, owner of the land was not given to
ABRAHAM v. SUB-COLLECTOR (RAY, J.] 543

the Harijans Welfare Department at whose instance the proceedings
A
'f· ·for acquisition were initiated under Rule 3(b) of the Rules made under
Section 55( 1) of the Land Acquisition Act. It was held that under Rule
3(b) it is incumbent on the Collector to give notice of objection to the
department requiring the land and copies of the objections had to be
given to such other departments. This is for enabling the department
to file on or before the date fixed by the Collector a statement by way B
of answer to the object.ions and also depute a representative to attend
~ the enquiry. This has to be done in order to give an opportunity to the
< department requiring the land to traverse the objections, if any, filed
by the person interested in the land, so that in the light of the reply of
the department, a decision may be arrived at for the purpose of mak-
ing the declaration under Section 6. It has been held that the Rule
being not mandatory its effect is that in the absence of service of such c
notice acquisition proceedings are not invalidated.

In State of Mysore & Ors. v. V.K. Kangan & Ors., ]1976] l SCR
369 at 371. The land was sought to be acquired for an Engineering
College at the instance of the Education Department of the State of D
Mysore, Section 4 notification was issued in the year 1960. After an
enquiry into the objections filed under Section 5-A the Land Acquisi-
tion Officer sent his report to the Government. Government overruled
the objections and issued a notification under Section 6. The Educa-
tion Department at whose instance the land was sought to be acquired
was not given notice as required by Rule 3(b) of Madras Land Acquisi- E
tion Rules. The respondents filed a Writ Petition in the High Court
challenging the validity of both the notifications on the ground that the
Education Department was not consulted. The High Court upheld the
contention of the respondents and quashed the notifications issued
under Sections 4 and 6 of the Act on the ground that if the Department
concerned filed any reply pursuant. to the notice issued, the objector F
would know what the Department has stated by way of reply and at the
stage of hearing of objections, the objector might adduce evidence or
address arguments to meet what is stated in such reply. The objector
could further urge before the Government that the reasons given by
the department in reply to the objections should not be accepted. It
was held that Section 5-A requires the Collector to make a report after G
hearing the objections. It does not mean that a rule cannot be framed
which would enable the department concerned to place its view point
before the Collector when considering the objection under Section
SA. The proceedings of the Collector are quasi-judicial and it is only
proper that he should be apprised of the attitude of the department
requiring the land in the light of the objections filed. It would be H
544 SUP!l-EME COURT REPORTS [1990) 3 S.C.R.

A helpful to the Government in making the decision to have before it the
answer to the objection by the department in order to appreciate the· "'
rival view points. Rule 3(b) is not ultra vires Section SA.

It has been held that Rule 3(b) was enacted for the purpose of
enabling the Collector to have all the relevant materials before him for
B
coming to a conclusion to be incorporated in the report to be sent to
the Government in order to enable the Government to make proper
decision. ·

Rule 3(b) is mandatory and non-service of the notice on the
Government Department at whose instance the requisition for
c acquisition was initiated, the notification under Section 6 becomes bad
and as such the same was quashed. This decision is not applicable to
the instant case for the simple reason that the requisition was not made
at the instance of the Government Department but at the instance of
the Manager, private school and the Education Department merely
has given a note certifying that the purpose of the requisition is a
D
public purpose and that the school agreed to bear the entire costs.

In these circumstances it cannot be contended that the requisi-
tion has been made by the Education Department or by its officer for
q,cquisition of the land in question. Therefore, in our considered
6pinion the ruling cited above is not applicable to the instant case.
E
In the premises aforesaid the only conclusion that follows is to
dismiss the appeal. In the facts and circumstances of the case the
parties will bear their own costs.

Y.Lal Appeal dismissed.