High Court Kerala High Court

Dr.Sreedhar Kavil vs State Of Kerala Represented By on 12 May, 2009

Kerala High Court
Dr.Sreedhar Kavil vs State Of Kerala Represented By on 12 May, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 8084 of 2007(K)


1. DR.SREEDHAR KAVIL,KAVIL HOUSE,GURUVAYUR,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY
                       ...       Respondent

2. THE DISTRICT COLLECTOR,TRICHUR.

3. GURUVAYUR DEVASWOM,REPRESENTED BY ITS

4. GURUVAYUR DEVASWOM COMMISSIONER,

5. THE PRINCIPAL,SREE KRISHNA HIGHER

                For Petitioner  :SRI.KURIAN GEORGE KANNAMTHANAM (SR.)

                For Respondent  :SRI.P.V.CHANDRA MOHAN

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :12/05/2009

 O R D E R
                   PIUS C. KURIAKOSE, J.
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         W.P.(C)Nos. 8084 of 2007 & 9974 of 2008
-------------------------------------------------------------------
           Dated this the 12th day of May, 2009



                          JUDGMENT

Writ petition No.8084/2007 under Article 226 is filed

by Dr. Sreedhar Kavil, who owns 64 cents of land near Sree

Krishna Higher Secondary School, Guruvayur challenging

the proceedings initiated for acquisition of his land invoking

the urgency provisions of the Land Acquisition Act. The first

respondent is the State represented by the Principal

Secretary, Revenue, the 2nd respondent is the District

Collector, Thrissur, the 3rd respondent is the Guruvayoor

Devasom Board, the 4th respondent is the Guruvayoor

Devaswom Administration Commissioner, the 5th respondent

is the Principal of Sree Krishna Higher Secondary School.

Additional respondents 6 and 7 are respectively one

Sri.K.V.Raveendran and Sri.C.I.George, who are said to be

a President and Executive Committee member of the

WP(C)N0. 8084/07 etc.
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Parents Teacher’s Association, Sreekrishna Higher

Secondary School, Guruvayoor.

2. The case of the petitioner is that he is a NRI

presently working in the United State. His property

extending to 64 cents is situated adjacent to the Sree

Krishna Higher Secondary School Guruvayoor belonging to

the Guruvayoor Devawom. The petitioner wanted to

construct a residential apartment on this property and

applied to the Guruvayoor Municipality for permit. While

so, he came to know from one Sri.Salim, the petitioner in

W.P.(C) No.9974/2008, who also owns a piece of land near

the school, that he received a letter from the District

Commissioner, Thrissur wherein it is stated that there is a

proposal to acquire the land invoking urgency clause on the

request of the Guruvayoor Devaswom Commissioner.

Ext.P1 is a copy of that letter. It is submitted by the

petitioner that Ext.P1 is a communication from the

WP(C)N0. 8084/07 etc.
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Government to the District Collector requesting to conduct

enquiry regarding the need to undertake urgency clause for

acquisition of land including that of the petitioner.

According to the petitioner, no notice whatsoever has been

given to him so far. On coming to know about Ext.P1, the

petitioner submitted Ext.P2 representation before the

Minister concerned on 9/2/2006. The Municipality granted

building permit -Ext.P3 to the petitioner on 28/2/2006. On

the strength of Ext.P3, the petitioner started construction of

the apartment complex. Foundation work is almost

complete. The petitioner started project in India and

abroad and already entered into agreements with many

prospective buyers. The petitioner has already invested

about 50 Lakhs in this project. Without considering the

objection of the petitioner, the Government passed Ext.P4

order according sanction for the acquisition of the petitioner

property invoking the urgency provision. According to the

WP(C)N0. 8084/07 etc.
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petitioner, the reasons stated in Ext.P4 is curious and has

nothing to do with urgency as contemplated by the Land

Acquisition Law. The reason stated is that the District

Collector has reported that since the land is close to the

high school, if a multi storied building comes near the

school, there is a probability of waste pollutants falling to

the school compound. According to the petitioner, high rise

residential building does not cause any sort of pollutions,

since adequate precautions permissible under law for

preventing pollution are being taken. The petitioner

challenged Ext.P4 order before this court by filing W.P.(C)

No.12472/2006. In that writ petition Devaswom filed Ext.P5

counter affidavit. It is pointed out that in Ext.P5 it is not

stated anywhere that the Devaswom considered the

question of expansion of the school and as to what was the

urgency in the matter of acquiring the petitioner’s land. The

only reason stated in the affidavit as the reasoning and the

WP(C)N0. 8084/07 etc.
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need for acquisition is the risk of pollution by high rise

building coming up near the school. This according to the

petitioner can not be a public purpose warranting

acquisition. The petitioner has produced Ext.P6 copy of a

letter from the Principal of the school to the Devaswom

Administrator, which had been produced by the Devaswom

along with Ext.P5. It is stated that steps for acquisition

started from Ext.P6. The petitioner has also produced

Ext.P7 which is a copy of the decision of the Governing

Board of the Devaswom dated 27/11/2005. It is submitted

that under Ext.P7, there is no decision at all for expansion

of the school premises. The only request is to acquire the

land to avoid pollution by multi storied buildings coming up.

Ext.P8 is a copy of the proceedings of the Devaswom

Commissioner dated 28/12/2005 and it is submitted that

without even considering the question of urgency Devaswom

Commissioner has given permission to invoke the urgency

WP(C)N0. 8084/07 etc.
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provision. It is pointed out that the Devaswom

Commissioner has no powers to give permission to invoke

the urgency clause. But it is a power vested with the

statutory authorities under the Land Acquisition Act.

Following Ext.P8, the Devaswom Administrator submitted

Ext.P9 requisition for acquisition to the District Collector. It

is pointed out that the only reason stated in Ext.P9 is that

land owners are taking hasty steps to construct buildings

and hence urgency clause is to be invoked. Along with

Ext.P9 formal requisition Ext.P10 was also enclosed. Under

Ext.P10 also no different reason is stated. The petitioner

submits that even before the formal request was received

on 7/4/2006 the Government has issued Ext.P4 order

according sanction for invoking the urgency clause. The

question as to whether the land is to be acquired or not has

to be independently decided by the Government, on the

receipt of the requisition. This has not so far been done.

WP(C)N0. 8084/07 etc.
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According to the petitioner from Ext.P4 it is clear that the

same is based on Ext.P7 and the report of the District

Collector. The petitioner submits that while issuing Ext.P4,

the Government had not considered whether there is public

purpose and whether there is necessity for invoking urgency

provision. W.P.(C) No.12472/2006 filed by the petitioner

was disposed of by passing Ext.P11 judgment, under which

the Government was directed to reconsider the matter after

affording hearing opportunity to all concerned. Pursuant to

Ext.P11, the matter was heard and the Government passed

fresh order Ext.P12. It is submitted that acquisition is not

absolutely necessary and in Ext.P12 the Government does

not discuss any reason as to the need for invoking urgency

clause. The reasons stated in Ext.P12 is at any rate is

insufficient. It is submitted that the requirement of land for

Higher Secondary School is only 3 acres. But the school in

question owns about 5 acres. Whether the need for

WP(C)N0. 8084/07 etc.
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expansion and what is the expansion planned and decided

are all material. These material aspects have never been

considered. On these facts and for the grounds raised the

petitioner prays that Exts.P4 and P12 be quashed and a writ

of mandamus be issued directing the respondents not to

invoke any urgency clause for acquisition of the petitioner’s

land.

3. On behalf of the second respondent District

Collector, a counter affidavit is filed. It is submitted that

the Administrator, Guruvayoor Devswom, vide its letter

dated 17/4/2006 requested to acquire an extent of 0.3035H

(Sy.No.158/3-674 cents and Sy.No.158/5-11 cents) of

property belonging to the petitioner in Iringappuram

Village, Chavakkad Taluk for the prevention of pollution and

development of Sree Krishna Higher Secondary School,

Guruvayoor. The Government vide order dated 7/4/2006

accorded sanction for acquisition of the above land invoking

WP(C)N0. 8084/07 etc.
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the urgency clause under Section 17. The Special Tahsildar

(LA) Guruvayoor Devaswom was appointed as Land

Acquisition Officer in this case vide District Collector’s

proceedings dated 5/5/2006. The petitioner in the writ

petition, who is the owner of 64 cents covered by the

proceedings has started construction of multi storied

building on this side. The proposal for invoking urgency

clause was submitted to the Land Revenue Commissioner

from the District Collector’s Office. While so the petitioner

in W.P.(C)No.8084/2007 filed W.P.(C) No.

No.12472/2006. This court by judgment in that writ petition

directed the first respondent- the Principal Secretary,

Revenue(Devaswom) Department, Thiruvananthapuram, to

hear all the parties and to decide the matter within four

months. Accordingly, all parties concerned were heard and

the matter was examined in detail by the respondent. It

was found that the acquisition was highly essential for

WP(C)N0. 8084/07 etc.
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further development of the school. It is submitted that the

Devawom Administrator, Guruvayoor Devaswom has

reported that Sree Krishna Higher Secondary School is the

one and only plus two school in this area accommodating

more than 2700 students mostly from the lower strata of

society and is in need of that land and hence acquisition is

required. It is submitted that the land is absolutely for the

development of the school. The requisition in Form No.2

(Rule 4 (1) from the Administrator, Guruvayoor Devaswom (

No.B3-8336/06 dated 17/4/2006) has been received for the

land acquisition process. As per Government letter dated

18/1/2006, a petition from Sri.Salim was received from the

Government. That petition was enquired into through the

Special Tahsildar, Guruvayoor Devaswom and it was found

that there is no merit in it. It is submitted that land is

close to the Sree Krishna Higher Secondary School and it is

sure that waste pollutants will come to school compound.

WP(C)N0. 8084/07 etc.
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Though the petitioner may be able to take measures to

control pollution, the high rise building in front of the school

will certainly hinder the smooth passage of fresh air and

light to the school. The necessity of sufficient land for the

future development of school is also a factor to be taken

into account. The Land Revenue Commissioner took all

relevant aspects into account and issued proceedings dated

13/10/2006 according sanction for invoking the urgency

clause. Referring to Ext.P7, it is submitted that Ext.P7 is

only a decision of the Administrator to request for the

acquisition of 75 cents of land for the development of Sree

Krishna Higher Secondary School. It is the Government

which has accorded sanction vide Government Order

No.2510/06/RD dated 7/4/2006. The Land Revenue

Commissioner vide its proceedings No.LR-C3-25310/2006

dated 13/10/2006 examined the proposal for invoking the

urgency clause and being satisfied that the land is urgently

WP(C)N0. 8084/07 etc.
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required and directed in exercising the power under sub

section (4) of Section 17 of the L.A. Act that the enquiry

under Section 5A will not apply in this case. It is pursuant

to the above order that the formal requisition was

submitted. It is thereafter, the Collector appointed the land

acquisition officer. Notification under section 4(1) was

published in Kerala Gazette and in the local dailies.

4. The third respondent, Administrator Guruvayour

Devaswom has also filed detailed counter affidavit. It is

contended therein that Guruvayur Sree Krishna Higher

Secondary school is a pioneer High School of the locality

which was started by the 3rd respondent for accomplishing

its social obligations. The school was started with a view to

help economically weak and down trodden people of

Guruvayur and near by areas. The school maintains high

standards in academic area. The student strength of the

school is more than 3000. The school is situated on the

WP(C)N0. 8084/07 etc.
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eastern side of the public road. There is a private road that

leads from public road to the school. This property is very

much necessary for future development of the school. It is

submitted that the 5th respondent noticed that the

petitioner proposes to put up a high rise building complex in

his property and that any such building shall be a cause of

perennial cause of hazard, nuisance and pollution to the

school. It was also noticed that the proposed construction

is likely to affect even free flow of fresh air to the school

thereby adversely affecting the atmosphere of the school

premises. The Guruvayoor Devaswom was convinced about

the apprehensions of the 5th respondent. Hence the matter

was placed before the Managing Committee of the

Devaswom. The Managing Committee after due

deliberations resolved to acquire the property of the

petitioner having an extent of 64 cents with a view to avert

pollution of the school premises and for future expansion of

WP(C)N0. 8084/07 etc.
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the school. It is submitted that once the subject matter is

made use of for constructions, no more land will be

available adjoining the school for expansion of the school in

future. Decision of the Managing Committee of Guruvayur

Devaswom is Ext.P7. Considering request of Devaswom

the 4th respondent in his proceedings dated 28/12/2005

accorded sanction to acquire the subject land invoking

urgency provision and to take advance possession. It is

stated that the as the petitioner was taking urgent steps to

start construction, the District Collector was requested to

initiate immediate steps to invoke urgency clause and to

take advance possession of the property on the basis of

Ext.P8. The petitioner approached this court and filed W.P.

(C) No.12472/2006 challenging proposal to invoke urgency

provision of L.A.Act. This court directed the Government to

consider all relevant aspects and take decision after

affording reasonable opportunity to all the aggrieved

WP(C)N0. 8084/07 etc.
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parties. The Government represented by Principal

Secretary to the Government Revenue (Devaswom)

Department considered the matter and passed Ext.P12

order. According to the counter affidavit, Ext.P12 is

justified in all respects. The counter affidavit goes on to

contend that Ext.P4 and Ext.P12 are not liable to be

quashed as they are orders legally passed by competent

Authorities on a consideration of all aspects involve din the

matter. It is then submitted that decision on expansion of

the school has to be taken at the appropriate time and in

accordance with need. But to implement expansion

projects land is necessary. The subject land to be acquired

lies adjacent to the school property and in between the

public road and the school property. Once the property is

not acquired land will not be available for future expansion

of the school. The Devaswom is bound to main in the

school premises a healthy atmosphere free of all pollutions.

WP(C)N0. 8084/07 etc.
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It is lastly contended that the petitioner only started

construction of the foundation. Exts.P4 and P12 orders are

perfectly legal and in accordance with the spirit of Section

17 of the L.A.Act. It is the experience that once a high rise

building come that is liable to cause pollution of all sorts. It

is stated in the counter affidavit that even if statutory

precaution and safety measures are provided, but in

practice those are not complied with. The school is in

possession of roughly 4 acres of land. Action of the

authorities is not an violative of Article 300 A of the

Constitution.

5. Additional 6th and 7th respondents have also filed

counter affidavit. Apart from endorsing the contention

raised by the Devaswom Administrator, it is stated in this

counter affidavit that the school is one of the largest and the

oldest school in the whole of State. There are 562

students in the Higher Secondary Section and 1831 students

WP(C)N0. 8084/07 etc.
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in the High School Section. There are 25 teaching and non

teaching staff in the higher secondary and 64 in the High

school. The school is situated on a land having an extent of

4.36 acres. The school playground occupies about 2 acres

and only the remaining 2.36 Acres are available for the

functioning of the school. Lack of enough space prevents

construction of new buildings. Due to lack of

accommodation the school authorities are not in a position

to give admission to all students who are applying for it.

During the educational year 2006 – 07 many students had

to be denied admission for this reason. The school mainly

caters to the students coming from socially and

economically weaker sections of the society. Since the

school is having a higher secondary section, it is essential to

have a good library, reading room, computer lab, etc.

These are the basic requirements to satisfy the needs of

curriculum. Presently the school lacks all these facilities.

WP(C)N0. 8084/07 etc.
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The 8th, 9th and 10th classes are functioning in temporary

sheds and they have to be shifted to permanent buildings.

On finding that new buildings have to be constructed very

urgently for the development of the school, Principal of the

school submitted a representation dated 3/4/2006 to the

Administrator, Guruvayoor Devaswom. The Parent Teacher

Association of the school was also pressing the authorities

for acquiring more lands for the construction of new

buildings. It is submitted that the school is short of land

and no other land is available in the neighbourhood.

Ext.R6(b)- the sketch showing -the school premises and

the locality is relied on. The counter affidavit goes on to

reiterate the contention raised in the Administrator’s

affidavit regarding the evil effects of the high rise building

coming up. In addition it is stated that the well of the

school is very close to the boundary with the petitioner’s

property. This well is the only source of drinking water and

WP(C)N0. 8084/07 etc.
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water for other purposes for the students and the teachers.

The petitioner has sunk a bore well, which is very close to

the school well. Once this bore well is put in operation, the

school well would definitely dry up. Expressing concerns

regarding the construction of the petitioner’s building,

Principal of the school submitted a representation to the

Government. Lastly it is contended that the petitioner is

permanently settled in America and does not have much

interest here, leave alone developing the land. A powerful

builder is behind this venture and the petitioner is only a

tool in his hands. The purpose behind this construction is

to make as such profit as possible with scant concern for

ecological and environmental factors. It is essential in the

larger interest of the students and for the systematic

development of the school that the land of the petitioner is

acquired for constructing new building for the school, it is

so stated in the counter affidavit.

WP(C)N0. 8084/07 etc.
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6. WP(C) No. 9974 is filed by Sri. R.A.Saleem who is

the owner of 10 cents of landed property which is being

proposed to be acquired along with the property of the

petitioner in WP(C) No. 8084/07. The respondents in this

writ petition are: (1) The State of Kerala, (2) the

Guruvayoor Devaswom and (3) The Sree Krishna Higher

Secondary School. According to the petitioner , he owns 10

cents of land with building thereon consisting of 15 flats and

two shop rooms. Ext.P1 is copy of the title document.

Ext.P2 is the location certificate and it is admitted that he

went in to purchase the property relying on Ext.P2 which

indicated that there was no proposal for land acquisition in

respect of the property. The Municipality issued the

petitioner with Ext.P3 building permit. The original proposal

was for construction of a three storied flat complex. While

so, the plan was altered and permission was sought for an

WP(C)N0. 8084/07 etc.
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addition of a floor. That was also sanctioned by the

Municipality and Ext.P4 is copy of the building permit issued

to the petitioner by the Municipality. The petitioner submits

that subsequent to the grant of building permit, on

extraneous reasons, the petitioner’s land was proposed to

be acquired at the instance of the Devaswom

Administration. Ext.P5 copy of the order of the Government

according administrative sanction for acquisition is

produced. The petitioner came to understand that further

proceedings for acquisition were not initiated on account of

the pendency of a writ petition before this court. Petitioner

relies on Ext.P6 sanction issued by the Principal Secretary to

the Government in this regard. The petitioner alleges that

the attempt for the acquisition was wholly extraneous as the

petitioner could not satisfy the illegal demands made by the

members of the Devaswom Committee which administers

the third respondent. Petitioner understands that the

WP(C)N0. 8084/07 etc.
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authorities are bent upon acquiring the petitioner’s property

for some reason or other. Dr.Sreedharan Sreedharan Kavil,

a neighbour whose properties are also being acquired,

moved this Court challenging the land acquisition proposal

and pursuant to the judgment of this court the petitioner

was also surprisingly called for a hearing. Now the

Government has passed Ext.P7 order proposing to acquire

the land of Dr.Sreedharan Kavil as well as that of the

petitioner stating the reason that the land is necessary for

further development of the school. Immediately on

receiving Ext.P7 petitioner submitted Ext.P8 review petition

But nothing was heard in the matter. But when the

building was completed in the meanwhile, the Municipality

refused to number the building. Under these circumstances

the petitioner moved this Court by way of WP(C). No.

32055/07 wherein this court was pleased to direct

numbering of the building by an interim order. It is said

WP(C)N0. 8084/07 etc.
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that the said writ petition is pending. In the meanwhile, the

petitioner was issued with a communication from the

Government informing that acquisition of the petitioner’s

land is necessary for the purpose of Sree Krishna Higher

Secondary School and that the District Collector is directed

to initiate the steps. The petitioner alleges that the proposal

culminating in Ext.P9 proceedings is solely made without

application of mind and is intended only to harass the

petitioner. The Devaswom has adjacent to the petitioner’s

land, about 11 cents of land which could have been utilized

for future development of the school if at all. The said

property is still not taken. Similarly, another plot of land

belonging to the Thahani Hospital is also not included in the

acquisition proceedings. The petitioner does not understand

how the property belonging to the Thahani Hospital or the

building belonging to the Devaswom which could well serve

the purpose of the school, are not acquired and the

WP(C)N0. 8084/07 etc.
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petitioner’s property alone is proposed to be acquired. On

these facts the petitioner has raised several grounds and

has filed this writ petition seeking the following prayers:

1) Quash Exts.P5, P7 and P9 by issuance of a writ of
certiorari.

2) Declare that the action of the respondents in
acquiring the petitioner land under the provisions of
the Land Acquisition Act is wholly illegal and
discriminatory.

7. The second respondent Administrator of Guruvayoor

Devaswom has filed a detailed counter affidavit in this case.

It is submitted that the property of the petitioner is situated

adjacent to the property of Dr.Sreedharan Kavil and is very

much essential for the development of the school. Except

for the landed properties belonging to the petitioner and

Dr.Sreedharan Kavil, all the other lands in the surrounding

of the school are owned by the Devaswom. When the

petitioner started construction work, the L.A. Officer visited

the place and directed him to stop the construction as the

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land was to be acquired. Any type of construction on this

land would adversely affect the development of the school

by means of pollution of the school compound and the

surroundings. The counter affidavit goes on to justify Ext.P7

order. It is submitted that Dr.Sreedharan Kavil having filed

WP(C). No. 8084/07 before this Court challenging Ext.P7

order and in view of the interim order in the said case

directing maintenance of status quo, further proceedings

could not be taken. This has been made mention of in

Ext.P6 communication. The counter affidavit stoutly denies

the allegation that it was on extraneous reasons due to the

petitioner not meeting the illegal demands made by the

members of the managing committee that the acquisition

proceedings have been taken. It is submitted that the

members of the committee had not put forward any illegal

demands. Petitioner has raised this allegation without any

bona fides. It is submitted that the petitioner proceeded

WP(C)N0. 8084/07 etc.
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with the construction of the building in his property after

being made known of the fact that the said property is going

to be acquired. Therefore there is no merit in the

contention that the construction of the building is

completed. So also, there is no merit in the reliance sought

to be made on the numbering of the building which was

made pursuant to the interim order passed by this court in

WP(C). No. 32055/07. Ext.R1(a) is copy of the interim

order. R1(a) is self explanatory and it will be seen that the

numbering of the building is provisional and does not confer

any right or claim on the petitioner. It is stated that Ext.P9

communication had been issued by the 1st respondent as

early as on 16-11-2006, prior to the issuance of Ext.P7

order dated 7-2-2007 and the alleged review petition filed

against Ext.P7. There is no merit in the statement of the

petitioner that Ext.P9 had been issued during the pendency

of the alleged review petition. It is also stated that the

WP(C)N0. 8084/07 etc.
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number of students increase day by day and there is

enough scope for the development of the school. It is

submitted that there is no limit for the development of a

school like the Sree Krishna Higher Secondary School by

opening new divisions, new batches, new course, play

grounds, laboratory, library etc. For all these developments

of the school, landed property is very much essential. The

counter affidavit goes on to justify the orders of the

Government and submits that at any rate there is no

justification for invoking the writ jurisdiction under Article

226 of the Constitution. A detailed reply affidavit has been

filed by the petitioner reiterating his contentions.

8. I have heard the submissions of Sri.Kurian George

Kannanthanam, learned senior counsel for the petitioner in

WP(C) No. 8084 of 2007 and those of Sri.K.Ramakumar,

learned senior counsel for the petitioner in WP(C). 9974 of

2008 who was assisted by Sri.T.Ramaprasad Unni,

WP(C)N0. 8084/07 etc.
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Advocate. I have also heard the submissions of

Sri.E.R.Venkiteswaran, Guruvayoor Devaswom Standing

Counsel who appeared in WP(C) No.8084 of 2007 and also

those of Advocate Sri.V. Krishna Menon, standing counsel

for Guruvayoor Devaswom who appeared in WP(C) No. 9974

of 2008. I have incorporated the judge’s papers in WP(C)

No. 12472 of 2006 and as directed by me the standing

counsel for Guruvayoor Devaswom made available for my

perusal the entire file pertaining to the proceedings for

acquisition of the properties involved in these cases.

9. Mr.Kurian George Kannanthanam referred to Ext.P1

in WP(C) No. 8084/07 and also to Exts. P7, P8, P9, P11 and

P12. Mr. Kurian would assail the orders impugned in the

writ petition on the garius grounds raised in the writ

petition. Mr.Ramaprasad Unni referred to Ext.P2 in WP(C).

No. 9974 of 2008 and to the averments in paragraph 15 of

the writ petition and those in paragraph 11 of the counter

WP(C)N0. 8084/07 etc.
-29-

affidavit submitted by the second respondent. According to

him Ext.P2 in his case will show that there was no proposal

to acquire the land. He argued that avoidance of pollution

cannot be a public purpose warranting exercise of powers of

eminent domain to acquire private persons’ property. He

referred to paragraph 6 of the reply affidavit which answers

the averments in paragraph 11 of the counter affidavit. Sri.

E.R. Venkiteswaran, standing counsel for Guruvayoor

Devaswom referred to Ext.P4 and P7 in WP(C) No. 8084 of

2007. He referred to the letter sent to the Chief Secretary

by the local MLA available in the files. Mr.Venkiteswaran

relied on the judgment of the Division Bench of this Court in

O.P. 34264 of 2000 wherein the Division Bench has declined

to interdict the land acquisition proceedings initiated at the

behest of the Guruvayoor Devaswom for the purpose of an

English Medium School run by the Guruvayoor Devaswom

Board through a society formed by it by name Guruvayoor

WP(C)N0. 8084/07 etc.
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Devaswom Educational Society. He highlighted that it has

been found by the Division Bench that establishment and

development of that school is a public purpose and this

court does not have any justification to interfere with the

acquisition proceedings, particularly, when the Devaswom

Commissioner, the statutory authority under the Guruvayoor

Devaswom Act has found that the school does not have

facilities. He drew my attention to the Gazette notification

dated 11-2-2008 No.LR C3-36 485/2007 cancelling the

notification published in the Gazette dated 3rd October 2007

in Mathrubhumi and Deepika dailies dated 19-12-2007.

According to Mr.Venkiteswaran, in view of the above

notification it is not necessary to quash the order dispensing

with the enquiry under section 5A since the enquiry under

section 5A is already dispensed with and it will suffice if this

court directs the enquiry under section 5A to be expedited.

Sri.Krishna Menon, learned standing counsel for Guruvayoor

WP(C)N0. 8084/07 etc.
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Devaswom appearing in WP(C) No. 9974 of 2008 submitted

that the said writ petition has to be rejected on the ground

of latches. He took strong exception to the allegations of

corruption alleged against the managing committee

members of the Guruvayoor Devaswom. According to him,

without producing any materials, wanton allegations have

been raised by the petitioners. He submitted that it is very

clear from the records available in this case that the

petitioner in WP(C) No.9974 of 2008 was having notice

regarding the promulgation of the combined notification

under section 4(1) and section 17(4) as well as the

declaration under section 6 and the order of the Land

Revenue Commissioner dispensing with enquiry under

section 5A. He never chose to challenge any of them at the

appropriate time.

11. I have anxiously considered the rival submissions

addressed at the Bar. I have carefully gone through the file

WP(C)N0. 8084/07 etc.
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placed before me by the standing counsel for Guruvayoor

Devaswom. The notification which is cancelled by

notification dated 11-2-2008 is the notification which is

published in Mathrubhumi and Deepika dailies dated 19-12-

2007. The above notification is the notification by which the

declaration under section 6 is made and after referring to

the Land Revenue Commissioner’s order dispensing with the

enquiry under section 5A, permission is granted to the

District Collector for taking advance possession of the land

under section 17(1), i.e., permission to take possession

within 15 days from the date of publication of the notice

under section 9 even prior to the passage of the award. The

notification dated 22-9-2007 refers to the relevant section 4

(1) notification as the notification dated 1-11-2006

published in the Gazette dated 9-11-2006 and the

notification published in Deepika and Mathrubhumi dailies

on 8-11-2006. Copies of the above notifications are also

WP(C)N0. 8084/07 etc.
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available in the file and it is seen that the above

notifications are combined notifications under section 4(1)

and section 17(4). These combined notifications are not

expressly cancelled by the notification dated 11-2-2008.

However, these notifications cannot have legs to stand in

view of the quashment of notification dated 29-9-07. This

means, in my opinion, that a fresh notification under section

4(1) will have to be promulgated, so that the acquisition

proceedings are initiated de novo. It is difficult to accept

the argument of Mr.Venkiteswaran that the L.A. proceedings

can be permitted under the ordinary provisions in

continuation of the notification dated 9-11-2006 treating

the same as a notification regarding proposal to acquire

under the ordinary provisions. Since the competent

authority itself has been convinced that this is not a fit case

where section 5A enquiry can be dispensed with, I am of the

view that appropriate orders are to be issued directing de

WP(C)N0. 8084/07 etc.
-34-

novo proceedings regarding the property which is subject

matter of WP(C) No. 8084 of 2007.

12. The question which now arises is whether the

petitioner in WP(C) No. 9974 of 2008 is eligible for the

reliefs which are being granted to the petitioner in WP(C)

No. 8084 of 2007. I am fully convinced that the petitioner

in Wp(C) No. 9974 of 2008 who is none other than the

petitioner in WP(C) No. 32055 of 2007 is guilty of latches

which should ordinarily disentitle him to any relief under

the discretionary jurisdiction under Article 226. His latches

in challenging L.A. proceedings becomes evident when it is

noticed that even when he filed WP(C) No. 32055 of 2007

he did not feel like challenging the L.A. proceedings and

limited his prayers in that writ petition to the relief of

getting the constructions put up by him on that property

assigned door numbers by the Municipality. In fact on the

strength of interim orders passed in WP(C) No. 32055 of

WP(C)N0. 8084/07 etc.
-35-

2007 he was able to get the constructions put up by him

provisionally numbered subject to the clarification that the

provisional numbering pursuant to that interim order will not

confer any claim or right on the petitioner. At the same

time it has been noticed in the interim order that if the

constructions are otherwise legal, provisional numbering will

not stamp any illegality on the constructions. I am of the

view that the petitioner in WP(C) No. 9974 of 2008 has to

pay a price for the inordinate delay which was occasioned

by him in challenging the land acquisition proceedings. At

the same time, I feel that since the grounds of challenge in

WP(C) No. 8084 of 2007 and WP(C). No. 9974 of 2008 are

same and the purpose of the acquisition is the same and

the proportion proposed to be acquired in W.P.(C)

9974/2008 is only a relatively small portion of the total

extent proposed to be acquired, considerations of propriety

and fairness demand that the petitioner in WP(C) No. 9974

WP(C)N0. 8084/07 etc.
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of 2008 also gets the benefit of enquiry under section 5A.

At the same time, considering his latches it is ordered that

the date of of the do novo section 4(1) notification to be

issued notwithstanding, in the event of acquisition

continuing after the enquiry under section 5A, the market

value of the property of the petitioner in WP(C) No. 9974 of

2008 will have to be determined as on 24-3-2008, the day

of which WP(C) No. 9974 of 2008 was instituted and not on

the date of the section 4(1) notification.

13. The result of the above discussion is that WP(C)

Nos. 9974 of 2008 and 8084 of 2007 are disposed of issuing

the following directions:

All proceedings if any pending now for acquisition of

the properties of the petitioners in these two cases are

quashed and the respondents are permitted to initiate

proceedings afresh under the ordinary provisions of the

Land Acquisition Act by promulgating a notification under

WP(C)N0. 8084/07 etc.
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section 4(1). It will be open to both the petitioners to raise

all available objections for the purpose of dissuading the

land acquisition officer from acquiring their properties by

convincing him that acquisition of their properties is not

necessary for accomplishing the avowed public purpose. The

enquiry to be conducted by the land acquisition officer under

section 5A shall be effective and meaningful and all

opportunity should be afforded to the petitioners for

adducing evidence for substantiating their objections. Once

the enquiry under section 5A is completed the land

acquisition officer should permit both the petitioners to

address their arguments, and if they so desire they should

be permitted to submit arguments in writing. Upon

conclusion of enquiry and hearing as directed above, the

land acquisition officer shall prepare his report incorporating

his recommendations regarding the objections submitted by

the petitioners for forwarding the same to the Land Revenue

WP(C)N0. 8084/07 etc.
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Commissioner. Copies of those reports should be given to

both the petitioners.

Petitioners are permitted to apply to the Land Revenue

Commissioner for hearing opportunity before the Land

Revenue Commissioner takes a decision on the question

whether the recommendations of the L.A. Officer should be

accepted or not. It is however, clarified that in the case of

the petitioner in WP(C). 9974 of 2008 in the event of the

acquisition being continued, for the purpose of determining

the market value of the property, the crucial date will be not

the date of the section 4(1) notification but will be 24-03-

2008.

Parties will suffer their costs.

(PIUS C.KURIAKOSE, JUDGE)
dpk/ksv/-

WP(C)N0. 8084/07 etc.
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