IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12924 of 2004(L)
1. C.R. VASUDEVAN, 25, BASANT GARDEN,
... Petitioner
2. BABY VASUDEVAN, 25, BASANT GARDEN,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE SPECIAL TAHSILDAR,
For Petitioner :SRI.ABRAHAM VAKKANAL (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :23/06/2008
O R D E R
PIUS C.KURIAKOSE, J.
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W.P.(C)NO.12924 OF 2004
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Dated this the 23rd day of June 2008
JUDGMENT
I have gone through the file. The file reveals that the
contention in the two counter affidavits that the possession was
taken on 27.8.2003 is correct. There is a mahazar prepared by
the Land Acquisition Officer at the time of taking possession and
the mahazar is attested by two respectable persons of the
locality. Under the scheme of the Land Acquisition Act,
acquisition proceedings attain finality when possession is taken
and thereupon the land will vest with the government absolutely.
In fact one of the defences of the government to the petitioner’s
request for quashing Ext.P13 which has been pursuant to Ext.P9
judgment of this Court is that possession was already taken and
therefore the request for exemption from acquisition cannot be
granted. Request if at all can be considered only as a claim for
reconveyance. In fact, after saying so, Ext.P13 order goes on to
say that the petitioner is not eligible for reconveyance either.
2. The Secretary to the Industries Department was bound
by Ext.P9 judgment by this Court. In fact pursuant to Ext.P9,
CRL.R.P.12924/2004 2
hearing notice was issued to the petitioner, but it is seen that
even before the day scheduled for hearing of the petitioner’s
representation, the property had been taken from the possession
of the petitioner. Mr.Abraham Vakkanal, senior counsel argued
that the very passage of the award during the currency of the
directions of this Court under Ext.P4 judgment was highly
improper. The Government’s explanation for passing the award
even during the currency of the directions under Ext.P4 is that
such a course became necessary for averting the statutory
lapsing of the proceedings on account of the expiry of the
statutory period provided under Section 11A. This explanation, I
am prepared to accept, but, in my view, the respondents could
have deferred dispossessing the petitioner till a decision had been
taken pursuant to Ext.P9. In the instant case, the governments
contention is that possession notice was issued and since there
was no positive response that notice possession was taken suo
motu by the Land Acquisition Authority. What was done was not
proper despite this Court’s displeasure at the conduct of the
respondents, this Court is not inclined to direct the government
to take a fresh decision on the petitioner’s claim for exemption
from acquisition. Technically, the government is right in
CRL.R.P.12924/2004 3
contending that what is now possible is only to treat the
petitioner’s claim as a claim for reconveyance. The learned senior
counsel asserted that despite the mahazar and despite the
averments in the counter affidavit, the petitioner continues to be
in physical possession But I am unable to accept the submission,
since I find that though in the reply affidavit several contentions
are raised by the petitioner, it is not seen that the contention of
the government that the petitioner has been dispossessed has
not been specifically refuted.
3. As already indicated under the impugned order it would
appear that the government has disallowed the petitioner’s
prospective claim for reconveyance. It cannot be in that way. In
this case the petitioner had in his favour the directions in Ext.P9
judgment directing the government to reconsider the petitioner’s
claim for exemption from acquisition. It is absolutely necessary
that the claim for reconveyance to be submitted by the petitioner
should be considered by the government not on the ordinary
parameters which are applied, when persons apply for
reconveyance of the properties which are acquired from them.
The prospective application to be submitted by the petitioner in
this case for reconveyance of the property in respect of which he
CRL.R.P.12924/2004 4
claimed exemption should be treated as a special case and
should be decided taking into account the various grounds on
which the petitioner sought for exemption from acquisition. The
petitioner is permitted to apply to the government for
reconveyance within one month of the petitioner receiving copy
of this judgment. If such an application for reconveyance is
received, the government will hear the petitioner on all the
grounds which are raised by him including the grounds raised by
him in this writ petition and the earlier writ petition in support of
his claim for exemption and take a decision. Decision, as directed
above, shall be taken by the government within three months of
receiving the representation from the petitioner after affording a
personal hearing opportunity to the petitioner. It is needless to
state that regard should be had while taking decision to Ext.P5
report of the District Collector and any other material or
circumstances which may be highlighted before the government
by the writ petitioner.
Writ Petition is disposed of as above. No costs.
PIUS C.KURIAKOSE, JUDGE
css/
CRL.R.P.12924/2004 5