IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 28886 of 2007(L) 1. K.V. KOYA, S/O. MAMMAD KOYA, ... Petitioner Vs 1. THE STATE OF KERALA, ... Respondent 2. THE SPECIAL TAHSILDAR (LAND ACQUISITION) 3. THE SUB DIVISIONAL MAGISTRATE, 4. THE DISTRICT COLLECTOR (CIVIL STATION), For Petitioner :SRI.K.M.FIROZ For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice PIUS C.KURIAKOSE Dated :30/09/2008 O R D E R PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No.28886 OF 2007 ----------------------------------------------- Dated this the 30th day of September, 2008 J U D G M E N T
The petitioner who claims to be the President of Salafi Centre, a
committee established at Karuvassery, Kozhikode is aggrieved by the
proceedings initiated for acquisition of immovable property belonging
to Salafi Centre by virtue of Ext.P1 for the establishment of a park for
the additional 5th respondent, the Calicut Corporation. Ext.P3 dated
22-8-01 is copy of the public notice issued under rule 7(1) of the Land
Acquisition Kerala Rules regarding notification under section 4(1) of
the Land Acquisition Act. To Ext.P3 petitioner has submitted Ext.P4
objections before the L.A. Officer and Ext.P5 objections before the
Government. The Government issued Ext.P6 hearing notice. Later the
hearing was adjourned by Ext.P7 telegram. In Ext.P7 telegram the
petitioner was informed that next hearing date will be intimated.
According to the petitioner proper enquiry under section 5A was never
conducted and declaration under section 6 was never issued. But to
his surprise the second respondent L.A. Officer has issued Ext.P9
award notice under section 12(2) and Ext. P8 possession notice under
section 15(3), on both bearing date 15-9-07. According to the
petitioner Exts.P8 and P9 are violative of Article 300A of the
Constitution of India read with Articles 14 and 21 and as amended the
writ petition is filed with the following prayers.
1. Call for the records leading to Exts.P8 and P9 notices both
dated 15-9-2007 issued by the second respondent and set
aside the same by issuing a writ of certiorari or any other
appropriate writ, direction or order.
2. Declare that the acquisition proceedings based on Ext.P3 is
barred by limitation and it is illegal and unsustainable in law.
3. Alternatively, to call for the records leading to Ext.P4 and to
direct the 2nd respondent to conduct enquiry based on Ext.P4
objection submitted under section 5A of the Land Acquisition
Act and consider Ext.P4 objection and dispose of the same
after hearing the petitioner expeditiously.
4. To call for the records relating to Exts.P5, P6 and P7 and
direct the first respondent to dispose of Ext.P5 objection/
representation after hearing the petitioner expeditiously.
5. To direct the respondents to keep in abeyance the land
acquisition proceedings till the enquiry under section 5A is
completed and communicated to the petitioner and the
procedure under the Land Acquisition Act is followed.
6. To stay the acquisition proceedings pursuant to Exts.P3, P8
and P9 pending disposal of the enquiry.
The main grounds on which the above reliefs are sought for are:
1. Enquiry under section 5A has not been conducted in the
petitioner’s case and the order has not been communicated
to the petitioner.
2. The acquisition proceedings are malafide and there is no
genuine public purpose for the acquisition.
3. The declaration under section 6 and the award passed under
section 11A are barred by limitation.
4. Ext.P8 possession notice in as much as the petitioner is given
time till evening of 29-9-07 only to vacate and threatening
Magisterial action in the event of petitioner not vacating,
violates Articles 300A read with Articles 14 and 21.
2. Detailed counter affidavits have been filed by the
requisitioning authority, the Corporation of Calicut and also by the
acquisition authority, the L.A. Officer. The requisitioning authority has
contended that the proceedings for acquisition of the petitioner’s
property, still larger extent of property belonging to one Haridasan Nair
were initiated for the construction of a park. Construction of a public
park which will be benefited to the entire public of the Corporation
particularly those inhabiting Division No.37 of the Corporation. The
petitioner’s site is situated between two roads and is therefore
unsuitable for making constructions. On the contrary it is ideal for a
park which is capable of providing greenery for maintaining a suitable
environment. The counter affidavit denies the allegation that the
proposal was mooted for preventing the construction of a Masjid at
the site and it is pointed out that even before the petitioner purchased
the land the proposal for constructing part had been conceived and
initiated. It is pointed out that Sri.Haridasan Nair, whose properties
were also being acquired unsuccessfully challenged proceedings vide
WP(C) No. 33720 of 2001. It is further pointed out that there was a
review petition and writ appeal also (RP.227/4 and WA. 1107/06) at
the instance of Sri.Haridasan Nair and that the contention that the
acquisition was for a public purpose was upheld by this court. It is
then contended that 5A enquiry was duly conducted and that award
has been passed. The land acquisition officer would also refute the
contentions of mala fides and ill-motive raised by the petitioner. As for
the question of limitation it is pointed that Sri.Haridasan Nair obtained
an order dated 15-2-2007 from this court (later produced as Ext.P10)
in which it has been stated that though the land acquisition
proceedings can go on, award shall be passed and petitioner
Sri.Haridasan Nair will be dispossessed only after obtaining orders from
the High Court. It is submitted that on the basis of the said order
passed by this court passage of award in the case of the petitioner’s
property was also kept pending. But on coming to know of the final
dismissal of writ petition filed by Sri.Hariasan Nair proceedings were
continued and award was passed. It is submitted that in this writ
petition on 28-9-07 this court granted interim stay for a period of one
month restraining the Special Tahsildar from dispossessing the
petitioner in implementation of Exts.P8 and P9. It is submitted that
this court’s order was brought to the L.A. Officer’s office only at 4.35
p.m. on 29-9-07, but long before that the land was taken possession
of and handed over to the requisitioning authority in the morning of
29-9-07. To the above counter affidavits the petitioner has filed reply
affidavit reiterating his contentions.
3. It was very extensive arguments which were addressed
before me by Mr.K.M.Firoz, learned counsel for the petitioner,
Mr.Basant Balaji, learned senior Government Pleader and
Sri.K.D.Babu, learned standing counsel for the Calicut Corporation .
Learned counsel drew my attention to the various materials placed on
records as well as to the relevant statutory provisions, particularly
section 11-A of the Land Acquisition Act. Land Acquisition file was also
made available for perusal by the learned Government Pleader. Having
considered the rival submissions addressed before me and having
scanned the file and the materials I find that the petitioner has been
dispossessed of his properties on the basis of the award passed by the
land acquisition officer on 29-9-07.
4. It is trite that that this court should be very slow in invoking
constitutional jurisdiction under Article 226 in respect of acquisition
proceedings in cases where award has been passed and possession has
been taken. Taking over of possession comes finality to the land
acquisition proceedings in view of section 16 of the statute. I am not
impressed by the argument.
5. One of the arguments which was seriously addressed before
me by Mr.Firoz that the award was time barred one and that a time
barred award is non est and possession taken on the basis of such a
time barred award is illegal and therefore a direction should be issued
to the respondents to put the petitioner back in possession of the
property. I am not impressed. Relevant declaration under section 6
has been issued on 17-8-2002. The award is dated 21-6-2007 which
is apparently beyond the statutory time frame. Petitioner may be
technically right in contending that Ext.P10 stay order does not pertain
to his properties. But it was not the petitioner’s property alone which
was being acquired for the corporation purpose of constructing park.
The direction which had been given to the land acquisition officer was
to identify and acquire the lands necessary for establishing the park.
The land acquisition officer in my opinion was justified in treating the
entire properties covered by the notification under section 4(1) as
being covered by Ext.P10. Ext.P10 was binding on the L.A. Officer and
the Government. The paramount statutory duty cast on the L.A.
Officer is to pass award and take possession without which the purpose
of the acquisition from the point of view of the requisitioning authority
will not be accomplished. The argument of the petitioner that there is
no public purpose and that the acquisition is actuated by the mala fide
intention of defeating the petitioner’s proposal of constructing a Masjid
is not supported by any material placed on record by the petitioner.
The purpose in my opinion is a public purpose and the citizens of the
Corporation generally and those belonging to Division No.37 will be
benefited particularly by the accomplishment of the said public
purpose. It is found from the materials available before me including
the file that possession has been taken and proceedings have attained
finality. I am therefore not inclined to grant the reliefs sought for.
6. At the same time it should be noticed that even though right
to property is no longer a fundamental right but continues to be a
constitutional right by virtue of Article 300A. The petitioner is entitled
for adequate compensation for their properties which are taken over in
exercise of powers of eminent domain by the State. The statement
itself provides for ensuring persons who are deprived of their
properties by land acquisition proceedings of adequate compensation it
is seen that the petitioner is well aware of section 18 of the Act and
had already applied for a reference under section 18 for determination
of the correct compensation for his acquired properties. The
Government Pleader submitted that though the award notice is dated
15-9-07 it was served only on 26-9-7 and that the petitioner submitted
reference application on 31-10-07. If this is so, the application for
reference is on time. In this context the judgment of the Supreme
Court in ………………. According to me, on the facts and
circumstances which obtained in this case, the only relief which the
petitioner can now aspire for is to have a reference under section 18
made to the court early, so that the court will adjudicate the issue at
the earliest. Therefore even as the reliefs sought for are declined I
dispose of the writ petition issuing the following directions.
The second respondent is directed to favourably consider the
application for reference under Section 18 submitted by the petitioner
within three weeks of receiving copy of this judgment and make a
reference to the competent Subordinate Judge’s Court for
determination of correct compensation payable for the acquired
properties. The court will register the reference case without delay
and facilitate adjudication of the issue and pass its award at the
(PIUS C.KURIAKOSE, JUDGE)