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P. Kunhahammad Haji Vs. the Special Tahsildar (L.A.) Pazhassi Project, Anjarkkandy - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberO.P. No. 3676 of 1977-D
Judge
Reported inAIR1980Ker205
ActsKerala Land Acquisition Act, 1962 - Sections 9(3), 9(4), 9(5), 12(2) and 49
AppellantP. Kunhahammad Haji
RespondentThe Special Tahsildar (L.A.) Pazhassi Project, Anjarkkandy
Appellant Advocate V.M. Nayanar,; M. Krishna Kumar and; R. Krishnan Nair
Respondent AdvocateGovt. Pleader
DispositionPetition dismissed
Cases ReferredRoss v. Collins (supra
Excerpt:
.....like a first cousin residing with the interested person cannot be said to be not a member of the family. service of notice upon such a person is, in my view, perfectly valid service for the purpose at section 49. 5. but shri nayanar submits that section 9 is a specific section dealing with a particular notice for a particular purpose and, therefore, the general provisions under section 49 cannot amount to service mentioned under section 9 (4). section 9 (4) says that notice upon an agent is good notice. whether or not the agent resides with the interested person or whether or not he is related to him, a notice upon a person who has been allowed to hold himself out as an agent, even if he has not been specifically authorised to act as such is, i think, good notice for the purpose of..........of it may be proved by the production of the addressee's receipt.' in the absence of the concerned person service may be made on any adult male member of his family residing with him. admittedly abdullakutty is a close relative residing with the petitioner. but shri nayanar contends that abdullakutty is not a member of the family as he is only a first cousin being the petitioner's mother's sister's son. a first cousin is not a member of the family, counsel states. according to him the family is limited to husband, wife and their children. this definition, i think, is too narrow for the purpose of section 49. the expression 'family' is not denned under the statute. various statutes have defined family for various purposes, some adopting a wide meaning and some a narrower meaning. under.....
Judgment:
ORDER

T. Kochu Thommen, J.

1. The petitioner's application (Ext. P-3), purportedly filed under Section 20 of the Kerala Land Acquisition Act, 1961 ('the Act'), was rejected by the impugned order (Ext. P-5) on the ground that it was presented out of time. According to the petitioner he has had no notice of the various steps taken by the respondent for the acquisition of the land. It is stated that no notice under either Rule 3 of the Kerala Land Acquisition Rules, 1963 ('the Rules') or Section 9 (2) and (3) or Section 12 of the Act was received by him. He filed the application under Section 20 (Ext. P-3, dated 22-6-1977) as soon as he heard of the award when the Sub-Court, Tellicherry sent him a notice in L. A. R. No. 92/77. It is accordingly submitted by the petitioner that Ext. P-3 was filed within the time mentioned under Section 20 (2) (b).

2. In the counter-affidavit dated 7-2-1978 it has been stated by the respondent, the Land Acquisition Officer, that notice contemplated under Ss. 3, 9 and 12 as well as Rule 3 had been duly issued. Notice under Rule 3 could not be served on the petitioner as he was not found at the place of his residence. But it was served on Abdullakutty who is the petitioner's mother's sister's son. Abdullakutty resides at the petitioner's place of residence. Notice under Section 9 (3) was also served on Abdullakutty. Public notice under Section 9 (1) had been duly made. Notice under Section 12 (2) was first sent to the petitioner by registered post, but it was returned with the endorsement on the cover that the petitioner could not be found as he had left without instructions. That notice was subsequently served upon Abdullakutty. All this is clearly stated in the counter-affidavit. That the notices were served on Abdullakutty is not in doubt because his signature appears in the acknowledgment slips. No affidavit has been filed in reply to the counter-affidavit a copy of which was duly served on the petitioner a year ago. In the circumstances the petitioner's counsel Shri Nayanar, is not in a position to deny the fact that notices were served on Abdullakutty or that Abdullakutty is a close relative residing with the petitioner, as alleged in the counter-affidavit. Shri Nayanar, however, submits that a notice under Section 9 (3) has not been served on the petitioner in the manner prescribed under Section 9 (4). The answer to this contention is Section 9 (5) as well as Section 49 (3).

3. I shall first read Section 9 (3): 'The Collector shall also serve notice to the same effect on the occupier, if any, of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate.' The petitioner is an occupier of the land and is therefore entitled to notice as such under Section 9 (3). The manner of service of notice is prescribed under Section 9 (4) which reads:

'In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by registered post in a letter addressed to him at his last known residence, address or place of business.' Admittedly the petitioner has not changed his place of residence. Apparently therefore he was not available at the time when the notice was taken to him. But notice was served on Abdullakutty who is a close relative residing at the place of residence of the petitioner. It was apparently in such capacity that he received the notice. In such circumstances the respondents are, in my view, justified in treating Abdullakutty as an agent for the purpose of service in terms of that section.

4. Section 49 refers to service of notices. It reads:

'49. Service of notices -- (1) .....

(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named,

(3) When such person cannot be found, the service may be made on any adult male member of his family residing with him, and if no such adult male member can be found, the notice may be served, by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the Officer aforesaid or of the Collector or in the courthouse, and also in some conspicuous part of the land to be acquired:

Provided that if the Collector or Judge shall so direct, a notice may be sent by registered post in a letter addressed to the person named therein at his last known residence, address or place of business, and service of it may be proved by the production of the addressee's receipt.' In the absence of the concerned person service may be made on any adult male member of his family residing with him. Admittedly Abdullakutty is a close relative residing with the petitioner. But Shri Nayanar contends that Abdullakutty is not a member of the family as he is only a first cousin being the petitioner's mother's sister's son. A first cousin is not a member of the family, counsel states. According to him the family is limited to husband, wife and their children. This definition, I think, is too narrow for the purpose of Section 49. The expression 'family' is not denned under the statute. Various statutes have defined family for various purposes, some adopting a wide meaning and some a narrower meaning. Under the Kerala Land Reforms Act, for example, an adult son is not a member of the family. On the other hand, in a joint family system the family may be very large indeed consisting of a large number of persons. 'Family' includes according to the dictionaries, even domestic servants (Webster Universal Dictionary; Chambers's 20th Century Dictionary; Concise Oxford Dictionary). It may also mean a 'Group of persons living under same roof including both those actually related by blood, and all the others, dependants, friends etc., forming the household.' (Webster, Op. cit). Whether such a wide definition is appropriate to understand Section 49 of the Act, I do not pause to consider, for the question does not arise on the facts of this case. In the absence of a statutory definition, 'family' has to be understood in the ordinary popular meaning. Family is generally understood as a group of people related by marriage or blood (Longman. Dictionary of Contemporary English). Family has a 'broadly recognisable de facto familial nexus. This may be capable of being found and recognised as such by the ordinary man where the link would be strictly familial had there been a marriage, or when the link is through adoption of a minor, de jure or de facto, or where the link is 'step-' or where the link is 'in-law' or by marriage. Per Russel L. J. in Ross v. Collins (1964) 1 WLR 425, 432. See Joram Developments v. Sharratt (1979) 1 WLR 928 (931). To understand the ordinary popular meaning, one should, in my view, ask oneself (as Pearson L. J. did in Ross v. Collins (supra): 'Would an ordinary man, addressing his mind to the question whether a mother's sister's son was a member of the family or not, have answered 'yes' or 'No'?' So tested. I have no doubt the answer would be 'yes'. A close relative like a first cousin residing with the interested person cannot be said to be not a member of the family. Service of notice upon such a person is, in my view, perfectly valid service for the purpose at Section 49.

5. But Shri Nayanar submits that Section 9 is a specific section dealing with a particular notice for a particular purpose and, therefore, the general provisions under Section 49 cannot amount to service mentioned under Section 9 (4). Section 9 (4) says that notice upon an agent is good notice. In my view Section 9(4) is wider than Section 49, for it is unnecessary that notice should be, for the purpose of this sub-section, served upon a male member of the family residing with the interested person. Whether or not the agent resides with the interested person or whether or not he is related to him, a notice upon a person who has been allowed to hold himself out as an agent, even if he has not been specifically authorised to act as such is, I think, good notice for the purpose of Section 9 (4).

6. Apart from all this, Section 9 (5) supplies the answer. It reads:

'The notice shall also be published in the Gazette and shall be deemed to be sufficient notice to all persons interested in the land as between the Government and such persona.' It has been stated at the bar that notice under Section 9 (5) was also published in the Gazette, Such notice is therefore deemed to be sufficient notice to all persons interested in the land as between them and the Government.

7. Notice under Section 12 (2) was sent by registered post, but it was returned with the endorsement that the addressee left without instructions. Consequently notice was served on Abdullakutty. That notice also was therefore proper notice to the petitioner.

8. In the circumstances of this case and for the reasons stated above, the petitioner cannot be heard to contend that the notices postulated under the Act and the Rules had not been duly served on him.

9. Ext. P-3 application was rightly rejected by Ext. P-5 for the reason that it was presented out of time.

10. The O. P. is accordingly dismissed. No costs.


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