Judgment

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, assailed the validity of the declaration made under Section 6 of the Kerala Land Acquisition Act, 1961 (Act 21 of 1962) made by respondent 2, Board of Revenue, Kerala State on September 25, 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 Divisional Officer, Changannur to order for acquisition of the same.

2. The grounds on which the challenge was made in the writ petition 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 redemption of the mortgage which was ultimately decreed and appellant got possession of the property on October 8, 1973. During the pendency of the suit the church authority moved the educational authorities as well 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 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) and (c) of the Kerala Land Acquisition Rules and the objection made by the appellant was decided by the respondents without hearing the government department or its representative. As such the impugned 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) and (c) of said Rules nor there was infringement of Rule 6.

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

4. The sole question that has been agitated before this Court by the learned counsel for the appellant is that provisions of Rule 5(b) and (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 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) and (c) of the said Rule have not been complied with in hearing objections.

5. The learned counsel for the respondent has, on other hand, submitted that the proposal for acquisition of the land in question for playground of the said school was made at the instance of the Manager of the School, respondent 3. 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 compensation for acquisition of the said land.

6. The appellant on receiving the notice under Section 3 of the said 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. Respondent 1 did not issue any notice of the objection filed by the appellant (petitioner) to the