IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8188 of 2010(W)
1. T.A.KURIACHAN, S/O.AVIRACHAN,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY
... Respondent
2. THE DISTRICT COLLECTOR, ERNAKULAM.
3. THE SPECIAL TAHSILDAR (LA)N.H.NO.1,
4. THE EXECUTIVE ENGINEER,
5. THE CIRCLE INSPECTOR OF POLICE,
6. REV.FR.JOY KADUKUMMAKKIL,
For Petitioner :SRI.K.JAJU BABU
For Respondent : No Appearance
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :26/03/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 8188 of 2010-W
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Dated this the 26th day of March, 2010.
JUDGMENT
The petitioner is a Parishioner of St. John’s Orthodox Syrian Church,
Vadakara, Koothattukulam. He is aggrieved by the proposed demolition of
the Chapel building at Koothattukulam Town, belonging to the said Church.
2. Learned Govt. Pleader opposed the prayer of the petitioner
pointing out that already the matter is covered by the judgment in W.P.(C)
No.25462/2009 and the property including the Chapel buildings have been
taken possession after invoking the provisions of the Land Acquisition Act,
especially under Section 49 of the At and the petitioner who is only a
parishioner, cannot challenge the same as the authorities of the Church have
already agreed for the demolition of the building.
3. What is pleaded by the petitioner in the writ petition is that the
Church is governed by the 1934 Constitution of Malankara Orthodox Syrian
Church. Ext.P1 is the copy of the Constitution. It has been declared as a
Parish Church as per Ext.P2 order passed by the District Court. Exts.P3 and
P4 are the judgment and decree in O.S. No.11/1981 wherein there is a
finding that the Church is governed by Ext.P1 Constitution. Accordingly, it
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is contended that in the light of the specific terms of the Constitution, for
sale or encumbrance of immovable properties of the Church, written
permission of the Metropolitan is to be obtained by the Vicar based on the
decision of the Parish meeting.
4. It is also pointed out that apart from the main Church building and
properties at Vadakara, the Church owns three chapels, including one in
Koothattukulam town. The chapel at Koothattukulam is situated in Sy.
No.93/1, 2, 3 and 4 of Koothattukulam village in Muvattupuzha Taluk.
5. Heard the learned Government Pleader Shri P. Narayanan for
respondents 1 to 5.
6. The notification for acquisition of 3.88 ares of land belonging to
Koothattukulam Chapel is one for widening of the M.C. Road and the same
is dated 15.1.2005. The award amount has been deposited in Sub Court,
Muvattupuzha, in L.A. Case No.248/2006, in the light of the dispute
between the two factions with regard to the properties of the Church. It is
pointed out that there is a five storied tower in front of the Chapel. The
Chapel is situated just behind the tower with shop rooms on either side.
Taking possession of the Chapel, according to the petitioner, is illegal and
the same is not required for the widening of the road and the surrender of
the shop building by the Vicar cannot be supported. It is further pointed out
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that the petitioner has filed a representation as Ext.P9 before respondents 1,
2 and 4.
7. Learned Govt. Pleader, on getting written instructions, pointed out
that the land was required for the upgradation of Muvattupuzha –
Ettumanoor – Chengannoor road under the Kerala State Transport Project of
PWD. The alignment plan was approved by the Government and boundary
stones for land acquisition were planted by the 4th respondent in 2005. The
land and structures in Sy. No.93/1-2 in Koothattukulam village owned by
Vadakara Puthenkoor Church falls within the acquisition boundary and a
chapel and adjacent shop buildings are included in the acquisition.
8. It is evident from the details submitted by the learned Govt.
Pleader that the award was passed on 27.4.2006 and in the light of the
dispute between two factions, viz. Jacobite and Orthodox, the amount was
deposited in the Sub Court under Section 31(2) of the Land Acquisition
Act. The deposit was made in the light of the fact that the Grievance
Redressal Committee of the District Collector as Chairman and the
Executive Engineer of P.W.D.-K.S.T.P. Division, Muvattupuzha, as
Convener, even though initiated negotiations between the two factions, no
agreement could be reached in the meeting held on 14.1.2008. The notice to
vacate the buildings has been issued on 13.10.2008. This was challenged in
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W.P.(C) No.25462/2009 by certain tenants. The writ petition was dismissed.
They were granted some time to vacate the premises. It is pointed out that
the tenants vacated the buildings later and the shop buildings and Chapel
were taken over by the Land Acquisition Officer on 24.2.2010 and handed
over the PWD-KSTP on the same day.
9. It is further pointed out by the learned Govt. Pleader that the
Chapel and the shop buildings on either side form a continuous structure
and are required to be acquired and demolished for widening of the road and
junction in Koothattukulam town. It is further stated that the entire
structures including Chapel building have been valued and the
compensation had been deposited in the Sub Court. It is also pointed out by
the learned Govt. Pleader that in the light of Section 49 of the Act, the
authorities are vested with the power for taking over of all the buildings
under the Act itself and therefore a person like a parishioner cannot at this
stage, oppose the same.
10. In fact, learned Govt. Pleader produced before me for perusal the
minutes of the meeting held on 1.11.2006 for fixing the price of the church
property by negotiation. Therein, the authorities of the Church requested
for fixing the compensation in respect of the entire building, obviously as
they cannot have any use of the part of the building. This was accepted for
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passing the award.
11. In the judgment in W.P.(C) No.25462/2009, this Court noticed
the contention of the learned Govt. Pleader that all other buildings have
been taken possession of. The same has been recorded also in the judgment.
Evidently, in the light of the said judgment, it is clear that the all the
buildings have been taken possession already.
12. Even though learned counsel for the petitioner submitted that the
Vicar and other persons in charge of the Parish cannot surrender a Chapel
and other buildings, as rightly pointed out by the learned Govt. Pleader,
there is a right of option under Section 49(1) of the Land Acquisition Act.
The said right has evidently, been exercised by the Vicar and other office
bearers of the Church and the same has been recorded in the minutes of the
meeting held on 1.11.2006. It is well settled that a third party cannot
challenge the same. The said legal position is clear from the decision of a
Full Bench of this Court in Saramma Itticheriya v. State of Kerala (2008
(1) KLT 6). Therein, the challenge was made by the tenant of a building
against the option exercised by the owner under Section 49(1) of the Act. It
was held by the Full Bench that the right of option given under Section 49
(1) is only available to the owner and not anybody including any person
interested or occupier, tenant, etc. It was also held that the expression of
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opinion to acquire the entire building need not be in any particular form but
it should be made before passing of the award. In that view of the matter,
even if the petitioner can be termed as a person interested, he cannot
challenge it in these proceedings. Obviously, the award has been passed
and the whole amount has been deposited before the Sub Court. The
property has already been taken possession. Any right of the parishioner,
etc. based on the judgment in the suit cannot therefore be a matter for
reconsideration at the hands of the Land Acquisition Officer in the light of
the special scheme under the Land Acquisition Act.
13. As rightly pointed out by the learned Govt. Pleader, every one of
the steps taken by the Land Acquisition Officer would have been within the
knowledge of the petitioner and the petitioner has approached this Court at
the stage of demolition of the building. The notification under the Act is in
the year 2005. There had been different meetings for negotiation and for
other purposes which were held at the instance of the officers of KSTP
also. There was a meeting of the two factions at the instance of the
Grievance Redressal Committee in which the District Collector is the
Chairman and the 4th respondent is the convener. Both factions were
represented in the meeting. This meeting was held on 14.1.2008 and the
minutes of the meeting was produced before me for perusal by the learned
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Govt. Pleader. It is clearly mentioned therein that as both sides could not
agree for reconciliation, the amount of compensation is being deposited
before the Sub Court under Section 31(2) of the Act.
14. It cannot be said that the petitioner was unaware about these
developments. Therefore, this writ petition is highly belated also. Apart
from the same, as found by me earlier, the petitioner has no right to seek
for a direction in this writ petition, in the light of the findings rendered
above. The writ petitioner has not sought to challenge the Land
Acquisition proceedings or the award passed in the light of the exercise of
option under Section 49 of the Act.
For all these reasons, the writ petition fails and the same is dismissed.
(T.R. Ramachandran Nair, Judge.)
kav/