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