E.A.Aboobacker vs State Of Kerala .

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2772 OF 2011

E.A. ABOOBACKER & ORS. …APPELLANT(S)

Versus

STATE OF KERALA & ORS. …RESPONDENT(S)

WITH

CIVIL APPEAL NO(S) 2773­2774 OF 2011

CIVIL APPEAL NO. 2775 OF 2011

J U D G M E N T

Deepak Gupta, J.

1. The short question which arises in these appeals is whether

the Special Tahsildar (Land Acquisition), Cochin Refineries Limited, Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2018.09.27 16:28:36 IST Reason:

Ernakulam, Vytilla, Cochin­19 [hereinafter referred to as “the 2

Special Tahsildar (LA), K.R.L.”] was empowered to act as Collector

under the Land Acquisition Act, 1894 (hereinafter referred to as

“the Act”), in respect of lands acquired by the State for an Infopark.

2. On 05.12.2005, the Government of Kerala accorded

administrative sanction to acquire 177.79 acres of land in

Ernakulam district for the purpose of the Infopark. The

Government also accorded sanction to invoke the urgency clause

under Section 17(1) of the Act. Thereafter, on 15.12.2005, the

District Collector, Ernakulam issued a Government Order

appointing the Special Tahsildar (LA), K.R.L. as the Land

Acquisition Officer for the acquisition of land for the Infopark.

Thereafter, a notification was issued under Section 4(1) of the Act.

In the said notification, it is mentioned that in view of the order of

the Government, application of Section 5(A) of the Act has been

exempted by invoking the powers under Section 17(4) of the Act.

According to the appellants 23.92 acres of land belonging to them

was sought to be acquired along with the land of others. The

appellants filed objections under Section 5A(1) of the Act. 3

According to them no action was taken on their objections and,

thereafter, they filed Writ Petition No.9735 of 2008 in the High

Court of Kerala seeking various reliefs including quashing of the

notification issued under Section 4(1) and 17(4) of the Act. The

main ground raised was that the Special Tahsildar (LA), K.R.L. was

not entitled to perform the functions of Collector under the Act.

The stand of the State was that the Special Tahsildar (LA), K.R.L.

was entitled to act as Collector for the entire Ernakulam District

and was therefore empowered to act as Collector even in relation to

land acquired for the Infopark. The writ court dismissed the writ

petition in so far as this objection was concerned. The appellants

filed Writ Appeal No.2446 of 2008 which was also dismissed on

06.01.2009.

3. We have heard Shri R. Venkataramani, learned senior counsel

for the appellants, Shri Basant R., learned senior counsel appearing

for Infopark and Shri K.N. Balgopal, learned senior counsel

appearing for the State of Kerala.

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4. Collector has been defined under Section 3(c) of the Act as

follows :­

“(c) the expression “Collector” means the Collector of a district, and includes a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under this Act;”

A bare reading of the provision makes it amply clear that the

Collector and the Deputy Commissioner of a District are, by virtue of

their office, deemed to be “Collector” within the meaning of the Act.

The appropriate Government is also empowered under Section 3(c)

to specially appoint any other officer to perform the functions of a

Collector. It is obvious that the State has to issue a specific

notification to appoint any other officer to perform the duties of

Collector. The State may in its wisdom appoint such officer for the

entire district or for a special project.

5. Section 4(1) of the Act reads as follows :­

4. 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 5

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).

6. In the present case, the controversy revolves around the

notification dated 21.08.1989, which reads as follows:

Government of Kerala Revenue (B) Department NOTIFICATION

No.51590/BI/89/RD Dated, Trivandrum, 21st August, 1989

S.R.O No. 1743/89­In exercise of the powers conferred by clause(c) of Section 3 of the Land Acquisition Act, 1894 (Central Act 1 of 1894) the Government of Kerala hereby appoint the Special Tahsildar (Land Acquisition), Cochin Refineries Limited, Ernakulam Vytilla, Cochin­19 to perform the functions of a collector under the said Act within the area of Ernakulam District and under sub section 2 of section 4 of the said Act, authorize him, his servants and workmen in exercise of the powers conferred under the said sub section in respect of any land within his jurisdiction for the acquisition of which a notification under sub­ section (i) of section 4 has been published.

By order of the Governor T . Sankaran, Additional Secretary to Government

Explanatory Note 6

(This does not form part of the notification but is intended to indicate its general purport.)

As per the Government Order (MS) No. 1/89/ID dated 15.04.1989 Government have sanction creation of new special Land Acquisition Unit with 30 staff for the acquisition of 320 acres of land for the expansion of Cochin Refineries Limited, Ambalamugal. In order to perform the function of a ‘Collector’ under the Land Acquisition Act, the Land Acquisition Officer has to be authorized under Section 3 (c) of the Land Acquisition Act. Hence the notification.

It has been urged by the State that the explanatory note not being

part of the notification should not be taken into consideration.

7. According to the appellants the language of the notification is

very clear that the Special Tahsildar (LA), K.R.L. has been appointed

as Collector only in respect of those lands for which the notification

of acquisition under Section 4 has already been published.

Therefore, according to the appellants, the Special Tahsildar (LA),

K.R.L. has no power to act as Collector in respect of other

acquisitions for which he is not empowered under the notification.

The appellants also place reliance on the explanatory note and

submit that though it may not be part of the notification but it

clearly indicates that the appointment of the Special Tahsildar (LA), 7

K.R.L. was only in respect of 320 acres of land involved in the

expansion of Cochin Refineries Limited and not for any other

purpose. On the other hand, the stand of the respondents is that by

this notification the Special Tahsildar (LA) K.R.L. has been

specifically appointed as “Collector” for Ernakulam District and is,

therefore, empowered to act as Collector for all acquisitions of land

in Ernakulam District. It has been submitted on behalf of the State

that the words “has been” cannot be read only in the past tense and

the words “has been” may be read as “is”. It is also contended that

the District Collector has distributed the work to the Special

Tahsildar (LA), K.R.L. vide order dated 15.12.2005.

8. On perusal of the notification it is apparent that by the said

notification the Government of Kerala had appointed an officer by

the name of Special Tahsildar (LA), K.R.L., to perform the functions

of a Collector under the Act only within the area of Ernakulam

District, only in respect of any land within his jurisdiction for the

acquisition of which a notification under sub­section (1) of Section 4

of the Act has been published.

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9. On a careful analysis of the notification, in our opinion, the

State has empowered the specified officer i.e. the Special Tahsildar

(LA), K.R.L. only in respect of the land for which the notification

under sub­section (1) of Section 4 had already been issued. The

Special Tahsildar (LA) K.R.L. was not empowered by the notification

of 21.08.1989 to issue any fresh notification in respect of other land.

Though the explanatory note may not be part of the notification the

same can definitely be used to resolve the ambiguity, if any, in the

notification. The explanatory note clearly indicates that the

notification has been issued only to empower the officer to act as

Collector in respect of 320 acres of land.

10. As far as the G.O. dated 15.12.2005 is concerned, all that we

need to say is that under Section 3(c) of the Act, it is only the

appropriate Government which can specifically appoint any other

officer as Collector. The District Collector has no power to do so. 9

11. The High Court took the view that since public interest is

concerned a liberal view has to be taken and when acquisition

proceedings are completed or going on for acquiring large portions of

lands required for public purpose, such acquisition cannot be

stopped on “cryptic hyper technical ground”. We are not at all in

agreement with this view of the High Court. It is a settled position of

jurisprudence that when the law prescribes a procedure to be

followed for doing any act or thing then that procedure has to be

followed and any violation of such procedure would make the act

voidable, if not void. There is no doubt that the State is empowered

to appoint any officer other than a Collector or Deputy Commissioner

to act as Collector. However, the notification should be clear as to

for what purpose such Collector is being appointed. As far as the

present case is concerned the Special Tahsildar (LA), K.R.L. was

appointed as Collector only in respect of acquisition of land relating

to Cochin Refineries Limited within Ernakulam District. If the State

wanted him to act as Collector in respect of other acquisitions,

nothing prevented the State from issuing a fresh notification in this

regard, but relying upon the notification dated 21.08.1989 the 10

Special Tahsildar (LA), K.R.L. cannot act as Collector in respect of

other acquisitions. This is not a hyper technical ground. When the

State wants to acquire the property of a citizen which is a

constitutional right of any citizen under Article 300(A) of the

Constitution of India it must strictly follow the procedure prescribed

by law. It cannot urge that because the acquisition is in public

interest a more liberal view is to be taken. There is no question of

taking a liberal or conservative view. The only view which has to be

taken is the legal view. In our considered opinion the Special

Tahsildar (LA), K.R.L. was not authorized to act as Collector for the

entire District of Ernakulam and is empowered only in respect of

acquisitions for which notification had already been issued for

acquiring land for the Cochin Refineries Limited.

12. It has been urged by Shri K.N. Balgopal that Special Tahsildar

(LA), K.R.L. has acted as Collector not only in the case of Infopark

but in many other cases and many land owners have accepted the

award and if we decide the matter against the State many

complications may arise. We, therefore, make it clear that if any 11

land owners have, without any objection to the authority of the

Special Tahsildar (LA) K.R.L., accepted the award of the Collector or

have filed objections with regard to quantum and area only and have

not disputed the authority of the Special Tahsildar (LA) K.R.L. to act

as Collector, such land owners cannot take benefit of this decision.

As far as this decision is concerned it will only enure for the benefit

of the appellants before us.

13. The appeals are accordingly allowed. Pending application(s) if

any is also allowed. The judgments and orders of the High Court in

Writ Appeal No.2446 of 2008 dated 06.01.2009 and Writ Petition

No.9735 of 2008 dated 25.11.2008 are set aside in the aforesaid

terms. We also make it clear that no other point was raised before

us and, therefore, the State can take appropriate action in

accordance with law if it still wants to acquire the land.

……………………………J. (Madan B. Lokur)

……………………………J. (Deepak Gupta)

New Delhi September 27, 2018