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K.V. Koya vs The State Of Kerala on 30 September, 2008

Kerala High Court
K.V. Koya vs The State Of Kerala on 30 September, 2008
       

  

  

 
 
  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

WP(C)N0.28886/07
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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.

WP(C)N0.28886/07
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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

WP(C)N0.28886/07
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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

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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

WP(C)N0.28886/07
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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

WP(C)N0.28886/07
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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

WP(C)N0.28886/07
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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

earliest.

(PIUS C.KURIAKOSE, JUDGE)
ksv/-

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