IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36880 of 2007(M)
1. M/S. NARMADA DESIGN CENTRE PVT.LTD., A
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE PRINCIPAL SECRETARY,
3. SPECIAL TAHSILDAR,
4. CHAIRMAN,
5. TRIVANDRUM DEVELOPMENT AUTHORITY,
For Petitioner :SRI.R.S.KALKURA
For Respondent :SRI.K.A.JALEEL, SC., TRIDA
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :06/08/2008
O R D E R
PIUS.C.KURIAKOSE, J.
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W.P.(c).No.36880 OF 2007
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Dated this the 6th day of August, 2008
JUDGMENT
Petitioner who is aggrieved by the proposal of the respondents to
acquire his property extending to 11 cents for the construction of a bus
bay at the request of the 4th respondent TRIDA has filed this writ
petition seeking the following reliefs;
“i) To declare the notice dated 26-11-2007
served on M/s. Narmada Building Enterprises (P)
Ltd for taking over 11 cents of land in survey No.7
as illegal and to stay all further proceedings thereon.
ii) Issue a writ of mandamus or any other
appropriate writ, order or direction of the nature of
mandamus directing the respondents 1 to 5 not to
initiate any proceedings for acquisition of the
property belonging to the petitioner without notice
as contemplated under the provisions of Land
Acquisition Act, 1894 and not to exceed the extent
of acquisition in Survey No.7.
iii) Issue a writ of mandamus or any other
appropriate writ, order or direction of the nature of
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mandamus directing the respondents 1 to 5 not to
exceed the extent of acquisition in Survey No. 7 of
Perurkada village beyond 0.0160 hectares (4 cents)
shown in the original gazette notification dated
03-05-2007 (Ext.P9)
iv) Issue a writ of mandamus or any other
appropriate writ, order or direction of the nature of
mandamus directing the respondents to consider the
other sites pointed out by the petitioner available for
locating the bus bay which is situated near to the
petitioner’s property in government land which
would ultimately reduce the land acquisition
expenses and would be in public interest.”
2. Counter affidavits have been filed wherein it is contended
that advance possession of the petitioner’s property has been taken.
When the above contention was seriously disputed, this court appointed
Sri.Thoufeek Ahamed as Advocate commissioner for conducting a
local inspection. Sri.Thoufeek has conducted local inspection and filed
his report. Sri.Thoufeek Ahamed’s report is to the effect that the
petitioner continues to carry on business in Iron, steel and cement in the
premises in question.
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3. Today the petitioner has produced photographs taken on
30/7/2008. These photographs also will reveal that the version of the
petitioner that he has not been dis-possessed and he is now carrying on
business is probable. Apart from the photographs petitioner has also
produced copy of the notice under section 9(3) which was received by
him inviting him to an award enquiry.
4. Sri.Basant Balaji, learned Government Pleader and
Sri.K.A.Jaleel, standing counsel for TRIDA would submit that the
order of the Government according sanction for invocation of the
emergency provision of section 17(1) and order of the Land Revenue
Commissioner directing enquiry under section 5A need not be
conducted in this case are not under challenge. Learned counsel would
therefore request that the respondents be permitted to continue with the
acquisition from the stage of the declaration under section 6 which also
they pointed out, is not specifically under challenge.
5. Sri.R.S.Kalkura, learned counsel for the petitioner would
concede that the petitioner is yet to challenge the order the government
according sanction and order of the land revenue commissioner
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dispensing with enquiry under section 5A. He took exception to the
submission that declaration 6 has not been challenged. According to
him, declaration has been challenged. He drew my attention to the
various grounds raised in the writ petition and submitted that
malafides tainting the entire acquisition is evident.
Having considered the rival submissions, I am of the view that so
long as the order of the Government under section 17(1) and the order
the land revenue commissioner under section 17(4) stand, the petitioner
cannot aspire for the reliefs sought for in this writ petition. The
allegation of malafides remains as allegations not yet substantiated by
producing any convincing material. I am therefore, not inclined to
grant the reliefs sought for. However, considering the submission of
Sri.Kalkura that the petitioner is collecting materials so that he can
challenge the order of the Government under section 17(1) and the
order of the land revenue commissioner under section 17(4), even as
I dismiss the writ petition declining the reliefs sought for, there will be
a direction that the petitioner will be permitted to maintain status quo
as obtaining today as revealed by the Commissioner’s report and the
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three photographs produced today for a period of 15 days from today.
It is open to the petitioner to participate in the award enquiry for which
he has been given notice without prejudice to his contentions in this
writ petition and the prospective writ petition. This judgment also will
not stand in the way of the petitioner filing appropriate petition before
the High Level Committee for Capital Region development for
Thiruvananthapuram city within seven days from the date of receipt of
a copy of this judgment. If the petitioner files application before the
High Level Committee within seven days of his receiving copy of this
judgment, the Committee will consider the application and pass
appropriate orders after affording hearing opportunity to the petitioner.
PIUS.C.KURIAKOSE
JUDGE
sv.
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