K SESHAGIRI MALLER Vs. SPECIAL TEHSILDAR FOR LAND ACQUISITION KOZHIKODE
HIGH COURT OF KERALA
SPECIAL TEHSILDAR FOR LAND ACQUISITION, KOZHIKODE
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(1.)The short question arising for decision in these oases is whether the two notifications, Exts. P 1 and P 2 in each of these writ applications, are liable to be quashed as Hot being in conformity with S.17(4) of the Land Acquisition Act, 1894. Before I refer to this section, it is necessary to state a few facts and extract the relevant parts of these notifications. Ext. P 1 is dated 4th December 1961 and was published in the Kerala Gazette dated 30th January, 1962. In relation to sub-s.(4) of S.17, what is stated in Ext. P 1 is as follows:
"Under sub-s.(4) of S.17 of the Act, the Government of Kerala direct that in view of the urgency of the case, the provisions of S.5A of the Act shall not apply to this case."
Ext. P 2 is also dated 4th December, 1961. This was published in the Kerala Gazette dated 13th February, 1962 and the relevant part of that notification is in these terms:
"Under sub-s.(2) of S.17 of the Act the Government of Kerala further direct that the possession of the said lands may be taken immediately after the publication of the notice mentioned in S.9(1) of the Act.
(2.)I am really concerned in this case about that part of Ext. P 1 which is extracted above and which contains the direction of the Government that the provisions of S.5A of the Act shall not apply.
(3.)Various contentions have been raised by counsel for the petitioners. But emphasis was laid on the contention stated in ground (4) of Para.2 of the affidavit in support of O. P. No. 713 of 1962. The relevant part of that paragraph is in these terms:
"I can be deprived of my right to property only if the conditions for the exercise of such power vested in Government are strictly complied with. In this case that has not happened and so the declaration under S.6 is violative of my fundamental right to property and unconstitutional. I submit that under S.17(2)(D), the purposes are limited and one of the purposes is for the construction, extension or improvement of any road. But before the Government can exercise its power there must be already the opinion of the Collector about the necessity of acquiring the immediate possession of the land for the said purpose. In this case the Collector has not expressed his Opinion about this land being immediately necessary to be taken possession of and I submit that the stage for the Government's order therefore has not arisen. For this reason also the order Ext. P 2 and Ext. P 1 are illegal."
The answer to this is contained in Para.7 of the counter affidavit filed on behalf of the second respondent, the State of Kerala, in O. P. No. 713 of 1962, which reads as follows:
"The Collector as a matter of fact, on his being satisfied that immediate possession of the property should be taken, invoked that provision of S.17 and approved S.4(1) notification as per his communication R. Dis. 3201/61 dated 10th November 1961."
The Government Pleader appearing on behalf of the second respondent placed before me the communication dated 10th November 1961 and the relevant portion of that communication is in Para.3 thereof, which reads:
"I submit herewith a draft notification under S.4(1) and draft declaration under S.6 of the L.A. Act (both in duplicate) inserting the urgency provisions of S.17(2) of the L. A. Act as the acquisition is for the purpose of a road, for approval by the Government and for publication in the Kerala Gazette."
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