IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 694 of 2008(G)
1. GOVINDAN NAIR,AGED 76, S/O. NARAYANA
... Petitioner
2. N.HARI,AGED 43 YEARS,S/O.G.NARAYANAN
Vs
1. THE SECRETARY,DEPT.OF LOCAL SELF
... Respondent
2. THE DISTRICT COLLECTOR,
3. THE SPECIAL TAHSILDAR, LAND ACQUISITION
4. THE SECRETARY, SPECIAL GRADE
5. THE PRESIDENT,MANARKKAD GRAMA
For Petitioner :SRI.RENJITH B.MARAR
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :12/06/2008
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C)No. 694 OF 2008
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Dated this the 12th day of June, 2008
J U D G M E N T
In this writ petition under Article 226 of the Constitution the
petitioners whose properties are proposed to be acquired under the
emergency provisions of the Land Acquisition Act challenges the land
acquisition proceedings initiated at the instance of the Manarkad
Grama Panchayat represented by respondents 4 and 5. It is
submitted that the first petitioner owns and possesses a total extent of
24 cents of land in Sy. No.816/8 of the Manarkad Village in block No.5
and out of the same land extending to 8.66 ares is now proposed to be
acquired for the purpose of construction of a market and taxi stand for
the Manarkad Grama Panchayat. On coming to know about the
proposal the petitioners filed Ext.P1 representation before the 2nd
respondent District Collector. It was alleged in Ext.P1 that the
proposal is actuated by mala fides and that there is a family temple on
the property and the acquisition will result in interference with the
religious faith of the petitioner and his family. Ext.P2 is copy of the
order issued by the first respondent secretary to Government in the
Department of Local Self Government to the 4th respondent Secretary
of the Grama Panchayat authorising the Panchayat to acquire
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properties including that of the petitioner for accomplishing the object
of establishing taxi stand and market. The petitioner approached this
court challenging Ext.P2 and this court passed Ext.P3 judgment
disposing of the writ petition directing that the petitioners’ property
shall not be taken possession before a notification under section 4(1) is
issued and clarifying that the judgment will not stand in the way of
survey is being conducted for the purpose of acquisition. Even after
Ext.P3 there was an attempt to dispossess the petitioner from his
property. Petitioner again approached this court and this court passed
Ext.P4 order dated 16-2-2005 in WP(C). No. 5582/05 directing that
the petitioner shall not be dispossessed other than through process
under the L.A. Act. Subsequently Ext.P5 notification under section 4(1)
dated 5-5-2005 was issued by the Government followed by Ext.P6
declaration under section 6 dated 25-1-2006 regarding acquisition of
10.17 ares of land belonging to the petitioner. Petitioner submits that
he was not aware of Ext.P5 or P6 and could get the information only
when he filed Ext.P7 application before the State Public Information
Office. In the meanwhile the Panchayat committee resolved on 29-5-
2007 by Ext.P8 to go ahead with the acquisition. Petitioner points
that during the course of events the President of the Panchayat issued
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Ext.P9 letter dated 31-5-2007 to the second respondent District
Collector intimating that there are no funds and therefore permission
should not be granted to go ahead with the acquisition. However, the
petitioner is now served with notice under section 9(1) directing his
appearance for award enquiry on 5-1-2008. The petitioner contends
that the present proceedings initiated under the Central Land
Acquisition Act are bad in view of section 62 of the Kerala Land
Acquisition Act which provides that the Central Land Acquisition Act
shall cease to apply for the State of Kerala. According to the
petitioner, it is the Kerala Land Acquisition Act and the Rules
thereunder are ought to apply. On the above facts and on the various
grounds raised in the writ petition the petitioner prays for a direction
to the respondents not to invoke the emergency clauses under the
Land Acquisition Act for the present acquisition; (2) to hear the
petitioner under section 5A before proceeding with the acquisition and
(3) to declare that the Central Land Acquisition Act cannot apply to
acquisitions in Kerala.
2. During the pendency of the writ petition award was passed
and notice of the award was issued to the petitioner. He has produced
the notice of award received by him as Ext.P10. Ext.P10 was passed
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obviously due to the reason that the stay passed by this court was only
regarding his possession and not against passage of award. The
petitioner has also filed I.A.7200/08 seeking amendment of the writ
petition for the purpose of incorporating a ground that the award is
barred by limitation. I have not allowed the application for
amendment. Sri.Mathew John K. Advocate on entering appearance for
respondents 4 and 5 would submit that the issues involved in this writ
petition where the proceedings for acquisition of the petitioners’
property and other properties required by the Panchayat for
establishment of the market and the taxi stand should be allowed has
been finally decided by this court in WP(C) No. 19109/05 as well as in
WP(C). No. 5773 of 2008. Mr. Mathew John submitted that
Sri.P.C.Mathew had in fact endeavoured to advance the case of the
writ petitioner also in WP(C). No. 19109/05 without success. As
requested by Mr.Mathew John, the records relating to those two cases
were also incorporated. It is seen that in WP(C). No.5773 of 2008
detailed counter affidavits were filed by the Panchayat as well as by
the land acquisition officer and it was considering those counter
affidavits also that I dismissed the writ petition holding that the
judgment in WP(C). No.19109/05 has attained finality and that award
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had been passed and entire compensation amount deposited regarding
the properties acquired from Sri.P.C.Mathew. It was seen that the
judgment in WP(C) No. 19109/05 had been produced as Ext.P1 in WP
(C). No.5773/08. It was agreed that the pre-fixed rates by the
Panchayat and by the land acquisition officer in the previous writ
petitions can be considered for the purpose of this case also.
3. It was Advocate Sri.Rajesh who addressed me on behalf of the
petitioner. Sri.Mathew John, Advocate addressed me on behalf of the
Panchayat while Sri.Basanth Balaji, learned Government Pleader
appeared for State and the official respondents.
4. The prayer of Sri.P.C.Mathew in WP(C). No. 19109/05 was for
a writ of mandamus commanding the Panchayat not to acquire his
property for establishment of the market and taxi stand; commanding
the District Collector to hear him under section 5A of the Land
Acquisition Act and for a direction not to invoke the urgency clause
under subsections 1, 2 and 4 of the L.A. Act without proper application
of mind. The proximity of Sri.Mathew’s property to the famous
Manarkad Church as well as to “a small temple” had been highlighted
in the writ petition filed by Sri.Mathew. He had contended that the
proposal to acquire his property was brought for in modification of an
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earlier proposal to suit the interest of certain other persons including
the Vice President of the Panchayat and the relatives of the Vice
President of the Panchayat who own lands near to his property. The
allegation was that the present proposal has been mooted so that the
establishment of the market by acquiring Sri.Mathew’s property will
result in appreciation of the land value of those properties.
Dispensation of the enquiry under section 5A had been challenged in
that writ petition on various grounds. It had been contended that the
establishment of a market very close to the temple was likely to
arouse communal tensions in the locality since the market is going to
have facilities for cow slaughtering and sale of beef. Suffice to say that
all conceivable contentions against the proposal had been raised by
Sri.P.C.Mathew in his writ petition. Ext.P1 is the judgment in the writ
petition filed by Sri.P.C.Mathew. It has been noticed under Ext.P1 that
the allegations of mala fides projected in the context of the so called
involvement of the Vice President of the Panchayat and properties
belonging to him and his relatives remained as an allegation and it was
not substantiated by any convincing material. I had noticed that the
non-impleadement of the Vice President of the Panchayat against
whom allegations had been levelled was futile. I had also found that
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even if the Vice President had been impleaded eo nomine then also it
could not have been possible for the petitioner to substantiate the
allegations since no material worth the name had been produced by
the petitioner. It was found in Ext.P1 that the public nature of the
proposal is beyond question and that the proposal is that of the local
authority which should be expected to know the ground realities of the
locality and to feel the pulse of the local people. I had also found that
establishment of a public market and taxi stand in the place of the
existing unsatisfactory arrangements will certainly be beneficial to the
public inhabiting the Panchayat and that there is justification even for
an initial presumption that the proposal is neither mala fide nor
colourable exercise of power as alleged. Overruling the challenge
against the order according sanction for invocation of emergency
provisions I had found that the Government had considered the
relevant materials and apply its mind to the question invocation of
emergency provisions was necessary. In doing so, I had repelled the
arguments raised on behalf of the petitioner that establishment of the
market in proximity to the temple will arouse communal tensions in
the locality. I had in fact found relying on the property tax
assessment register maintained by the Panchayat that the so called
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temple is not a public temple at all. I had also accepted the contention
of the Panchayat that the apprehensions of communal tension are
without basis. I had ultimately concluded that the request of the
Panchayat to the Government for invocation of the emergency
provisions was justified since the same was in the wake of successive
orders passed by this court including an order in a contempt of court
case. Thrust was given by Advocate Rajesh in his submissions on
Sections 57(1), 57(2) and 65 of the Panchayat Raj Act. It was argued,
invocation of the emergency provisions of the Land Acquisition Act can
be had only for discharge of the mandatory functions of the Panchayat
as per III Schedule to the Panchayat Raj Act. Establishment of market
and taxi stand do not come within the mandatory functions and at the
most can come under sector wise functions. Strong reliance was
placed by Mr.Rajesh on the judgment of this court in Dr.Noor
Mohammed v. District Collector, 1981 KLT 816. Sri.Mathew John,
learned counsel for the Panchayat and Sri.Basanth Balaji, learned
Govt. Pleader would meet the submissions of Mr.Rajesh by highlighting
Ext.P1 judgment and also the subsequent judgment in WP(C). No.
5773 of 2008.
5. In reply Mr.Rajesh would submit that the issue has never been
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examined by this court in the context of the provisions of the
Panchayat Raj Act or in the light of this Court’s judgment in Dr.Noor
Mohammed’s case. I have considered the rival submissions in the light
of the statutory provisions and the judgment of this court in Dr.Noor
Mohammed’s case. It is true that in Dr.Noor Mohammed’s case this
court has indicated that emergency provisions of the Land acquisition
Act cannot be invoked if the purpose of the acquisition is not discharge
of the mandatory functions of the Panchayat. To that extent the ratio
in that case supports the grounds raised by the petitioner. But at the
same time it has been laid down in Dr.Noor Mohammed’s case itself
that for discharge of mandatory functions of the Panchayat also
acquisition can be permitted under the ordinary provisions of the Land
Acquisition Act. In the instant case the Panchayat was under
compulsion of writs of this court and under the threat of initiation of
contempt proceedings to complete the acquisition proceedings within a
time frame. The writ court was as much binding on the Panchayat as
the statutory provisions. It is taking note of the writs issued by this
court and the orders passed by this court in C.C.C. Initiated at the
instance of persons in whose favour writ had been issued against the
petitioner directing the Panchayat to complete the acquisition within a
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time frame and Ext.P1 judgment the challenge against the invocation
of the emergency provisions was repelled. As stated in Ext.P1 the
purpose of the acquisition is beyond controversy. The Government
order according sanction for invocation of emergency provisions have
been upheld in Ext.P1. The scope of an enquiry under section 5A is
mainly to convince the land acquisition officer that acquisition of the
petitioner’s property is not necessary for accomplishment of the public
purpose and dissuade the land acquisition officer against such
acquisition. The grounds which the petitioner wanted to raise before
the land acquisition officer in section 5A enquiry are obviously similar
to the grounds raised by Sri.P.C.Mathew in Ext.P1 case. The findings
of this court in Ext.P1 judgment in my opinion will apply to this case
also. Challenge against the government order according sanction for
invocation of emergency provisions is repelled. The other prayers are
also declined. The writ petition will stand dismissed.
(PIUS C.KURIAKOSE, JUDGE)
ksv/-
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