Molly Jacob vs State of Kerala and Others

J. Chelameswar, C.J.—Aggrieved by a judgment dated 14th July, 2010 in W.P. (C) No. 19847 of 2008 the unsuccessful petitioner therein preferred the present writ appeal.

The dispute is regarding the acquisition of an extent of 5.65 ares of the appellant''s property under the provisions of the Land Acquisition Act, 1894 (''the Act'' for short). The further details of the property may not be necessary for the purpose of the instant order. Admittedly the property in dispute was notified u/s 4(1) of the Act and eventually after enquiry u/s 5A of the Act a declaration contemplated u/s 6 of the Act was also issued.

The acquisition is challenged mainly on two grounds, (1) that there is no appropriate publication as contemplated u/s 4 of the Act and (2) that the decision to acquire the property in question on the ground that it is required for public purpose is not taken by the State Government, but the State blindly followed the suggestion made by a consultant (M/s/Luis Berger Inc.)

The learned Counsel for the appellant argued that Section 45 of the Act prescribes the mode of service of notice and the said prescription is not complied with in so far as the notice u/s 4(1) of the Act is concerned. Section 4(1) of the Act reads as follows:

Publication of preliminary notification and powers of officers thereupon.- (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification).

It can be seen from the above extracted provision that in the opinion of the State Government if a particular piece of property is required for a public purpose, the same is required to be notified in the Official Gazette and also in two daily newspapers circulating in that locality of which at least one shall be in the regional language. Further it also mandated the Collector to cause a public notice of the substance of the said notification at convenient places in the locality. Section 4(1) of the Act does not contemplate service of personal notice on either the owner or any other person having interest in the property whenever a notification u/s 4(1) of the Act is issued.

Therefore, the submission of the learned Counsel that the procedure contemplated u/s 45 of the Act in so far as it pertains to the notice u/s 4(1) of the Act is not complied with cannot be accepted. The expression public notice occurring u/s 4(1) in the context of the section clearly means not a personal notice to the interested parties.

Regarding the publication of notice u/s 4(1) of the Act, one of the submissions made by the learned Counsel for the appellant is that though the substance of the notice is published in two newspapers including one in vernacular newspaper, such a vernacular newspaper does not have sufficient circulation in that locality. We regret our inability to accept the said submission. First of all, the requirement of the law is that the publication should be in such a newspaper which is circulated in the locality. The volume of circulation is immaterial and eventually it is a matter of opinion where a particular newspaper has sufficient circulation in the locality or not. What is material in the context is whether the newspaper is offered for sale and available for purchase in the locality which fact is not disputed.

Coming to the second submission made by the learned Counsel for the appellant that the State did not apply its mind in making the choice of the land sought to be acquired, but simply acted on the suggestion made by the consultant and therefore the acquisition is vitiated is equally untenable. In matters of public works such as construction of roads and buildings, the suitability of the property which is required to be acquired for such public purpose is to be determined on the basis of many a factor. Such a decision making may involve (depending on the situation) technical expertise such as engineering designs, soil conditions, etc. The State, in our opinion, therefore would be legitimately entitled to consult such persons or organizations as it deems fit having regard to the requirement of the situation. On the facts of the present case, even on the admission of the State, the State did consult with some agency. In the absence of any specific challenge to the competence of such consultancy, we do not see any reason to come to the conclusion that such consultation was illegal.

In the circumstances, we do not see any merit in the writ appeal.

The learned Counsel for the appellant however submits that he may be given some reasonable time to vacate the premises in question as he is carrying on some business in the said premises. Heard the learned Government Pleader. In the facts and circumstances of the case, we are of the opinion that the appellant may be permitted to vacate the premises in question on or before 30th September, 2010. The writ appeal is disposed of as above. In the circumstances, there will be no order as to costs.