{"id":102366,"date":"2008-06-12T00:00:00","date_gmt":"2008-06-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/govindan-nair-vs-the-secretary-on-12-june-2008"},"modified":"2014-12-14T17:05:14","modified_gmt":"2014-12-14T11:35:14","slug":"govindan-nair-vs-the-secretary-on-12-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/govindan-nair-vs-the-secretary-on-12-june-2008","title":{"rendered":"Govindan Nair vs The Secretary on 12 June, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Govindan Nair vs The Secretary on 12 June, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 694 of 2008(G)\n\n\n1. GOVINDAN NAIR,AGED 76, S\/O. NARAYANA\n                      ...  Petitioner\n2. N.HARI,AGED 43 YEARS,S\/O.G.NARAYANAN\n\n                        Vs\n\n\n\n1. THE SECRETARY,DEPT.OF LOCAL SELF\n                       ...       Respondent\n\n2. THE DISTRICT COLLECTOR,\n\n3. THE SPECIAL TAHSILDAR, LAND ACQUISITION\n\n4. THE SECRETARY, SPECIAL GRADE\n\n5. THE PRESIDENT,MANARKKAD GRAMA\n\n                For Petitioner  :SRI.RENJITH B.MARAR\n\n                For Respondent  :SRI.MATHEW JOHN (K)\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\n\n Dated :12\/06\/2008\n\n O R D E R\n                        PIUS C. KURIAKOSE, J.\n               -----------------------------------------------\n                        W.P.(C)No. 694 OF 2008\n               -----------------------------------------------\n                Dated this the 12th day of June, 2008\n\n                             J U D G M E N T\n<\/pre>\n
      In this writ petition under Article 226 of the Constitution the<\/p>\n
petitioners whose properties are proposed to be acquired under the<\/p>\n
emergency provisions of the Land Acquisition Act challenges the land<\/p>\n
acquisition proceedings initiated at the instance of the Manarkad<\/p>\n
Grama Panchayat represented by            respondents 4 and 5.    It is<\/p>\n
submitted that the first petitioner owns and possesses a total extent of<\/p>\n
24 cents of land in Sy. No.816\/8 of the Manarkad Village in block No.5<\/p>\n
and out of the same land extending to 8.66 ares is now proposed to be<\/p>\n
acquired for the purpose of construction of a market and taxi stand for<\/p>\n
the Manarkad Grama Panchayat.           On coming to know about the<\/p>\n
proposal the petitioners filed Ext.P1 representation before the 2nd<\/p>\n
respondent District Collector.      It was alleged in Ext.P1 that the<\/p>\n
proposal is actuated by mala fides and that there is a family temple on<\/p>\n
the property and the acquisition will result in interference with the<\/p>\n
religious faith of the petitioner and his family. Ext.P2 is copy of the<\/p>\n
order issued by the first respondent secretary to Government in the<\/p>\n
Department of Local Self Government to the 4th respondent Secretary<\/p>\n
of the Grama Panchayat authorising the Panchayat to acquire<\/p>\n
WP(C)N0.694\/08
\n                                  -2-<\/span><\/p>\n
properties including that of the petitioner for accomplishing the object<\/p>\n
of establishing taxi stand and market. The petitioner approached this<\/p>\n
court challenging Ext.P2 and this court passed Ext.P3 judgment<\/p>\n
disposing of the writ petition directing that the petitioners’ property<\/p>\n
shall not be taken possession before a notification under section 4(1) is<\/p>\n
issued and clarifying that the judgment will not stand in the way of<\/p>\n
survey is being conducted for the purpose of acquisition. Even after<\/p>\n
Ext.P3 there was an attempt to dispossess the petitioner from his<\/p>\n
property. Petitioner again approached this court and this court passed<\/p>\n
Ext.P4 order dated 16-2-2005 in WP(C). No. 5582\/05 directing that<\/p>\n
the petitioner shall not be dispossessed other than through process<\/p>\n
under the L.A. Act. Subsequently Ext.P5 notification under section 4(1)<\/p>\n
dated 5-5-2005 was issued by the Government followed by Ext.P6<\/p>\n
declaration under section 6 dated 25-1-2006 regarding acquisition of<\/p>\n
10.17 ares of land belonging to the petitioner. Petitioner submits that<\/p>\n
he was not aware of Ext.P5 or P6 and could get the information only<\/p>\n
when he filed Ext.P7 application before the State Public Information<\/p>\n
Office. In the meanwhile the Panchayat committee resolved on 29-5-<\/p>\n
2007 by Ext.P8 to go ahead with the acquisition. Petitioner points<\/p>\n
that during the course of events the President of the Panchayat issued<\/p>\n
WP(C)N0.694\/08
\n                                  -3-<\/span><\/p>\n
Ext.P9 letter dated 31-5-2007 to the second respondent District<\/p>\n
Collector intimating that there are no funds and therefore permission<\/p>\n
should not be granted to go ahead with the acquisition. However, the<\/p>\n
petitioner is now served with notice under section 9(1) directing his<\/p>\n
appearance for award enquiry on 5-1-2008. The petitioner contends<\/p>\n
that the present proceedings initiated under the Central Land<\/p>\n
Acquisition Act are bad in view of section 62 of the Kerala Land<\/p>\n
Acquisition Act which provides that the Central Land Acquisition Act<\/p>\n
shall cease to apply for the State of Kerala.        According to the<\/p>\n
petitioner, it is the Kerala Land Acquisition Act and the Rules<\/p>\n
thereunder are ought to apply. On the above facts and on the various<\/p>\n
grounds raised in the writ petition the petitioner prays for a direction<\/p>\n
to the respondents not to invoke the emergency clauses under the<\/p>\n
Land Acquisition Act for the present acquisition;     (2) to hear the<\/p>\n
petitioner under section 5A before proceeding with the acquisition and<\/p>\n
(3) to declare that the Central Land Acquisition Act cannot apply to<\/p>\n
acquisitions in Kerala.\n<\/p>\n
      2. During the pendency of the writ petition award was passed<\/p>\n
and notice of the award was issued to the petitioner. He has produced<\/p>\n
the notice of award received by him as Ext.P10. Ext.P10 was passed<\/p>\n
WP(C)N0.694\/08
\n                                   -4-<\/span><\/p>\n
obviously due to the reason that the stay passed by this court was only<\/p>\n
regarding his possession and not against passage of award.         The<\/p>\n
petitioner has also filed I.A.7200\/08 seeking amendment of the writ<\/p>\n
petition for the purpose of incorporating a ground that the award is<\/p>\n
barred by limitation.     I have      not allowed the application for<\/p>\n
amendment. Sri.Mathew John K. Advocate on entering appearance for<\/p>\n
respondents 4 and 5 would submit that the issues involved in this writ<\/p>\n
petition where the proceedings for acquisition of the petitioners’<\/p>\n
property and other properties required by the Panchayat for<\/p>\n
establishment of the market and the taxi stand should be allowed has<\/p>\n
been finally decided by this court in WP(C) No. 19109\/05 as well as in<\/p>\n
WP(C). No. 5773 of 2008.           Mr. Mathew John submitted that<\/p>\n
Sri.P.C.Mathew had in fact endeavoured to advance the case of the<\/p>\n
writ petitioner also in WP(C). No. 19109\/05 without success.        As<\/p>\n
requested by Mr.Mathew John, the records relating to those two cases<\/p>\n
were also incorporated. It is seen that in WP(C). No.5773 of 2008<\/p>\n
detailed counter affidavits  were filed by the Panchayat as well as by<\/p>\n
the land acquisition officer and it was considering those counter<\/p>\n
affidavits also that I dismissed the writ petition holding that the<\/p>\n
judgment in WP(C). No.19109\/05 has attained finality and that award<\/p>\n
WP(C)N0.694\/08
\n                                   -5-<\/span><\/p>\n
had been passed and entire compensation amount deposited regarding<\/p>\n
the properties acquired from Sri.P.C.Mathew. It was seen that the<\/p>\n
judgment in WP(C) No. 19109\/05 had been produced as Ext.P1 in WP<\/p>\n
(C). No.5773\/08.     It was agreed that the pre-fixed rates by the<\/p>\n
Panchayat and by the land acquisition officer in the previous writ<\/p>\n
petitions can be considered for the purpose of this case also.<\/p>\n
      3. It was Advocate Sri.Rajesh who addressed me on behalf of the<\/p>\n
petitioner. Sri.Mathew John, Advocate addressed me on behalf of the<\/p>\n
Panchayat while Sri.Basanth Balaji, learned Government Pleader<\/p>\n
appeared for State and the official respondents.\n<\/p>\n
      4. The prayer of Sri.P.C.Mathew in WP(C). No. 19109\/05 was for<\/p>\n
a writ of mandamus commanding the Panchayat not to acquire his<\/p>\n
property for establishment of the market and taxi stand; commanding<\/p>\n
the District Collector to hear him under section 5A of the Land<\/p>\n
Acquisition Act and for a direction not to invoke the urgency clause<\/p>\n
under subsections 1, 2 and 4 of the L.A. Act without proper application<\/p>\n
of mind.    The proximity of     Sri.Mathew’s property to the famous<\/p>\n
Manarkad Church as well as to “a small temple” had been highlighted<\/p>\n
in the writ petition filed by Sri.Mathew. He had contended that the<\/p>\n
proposal to acquire his property was brought for in modification of an<\/p>\n
WP(C)N0.694\/08
\n                                   -6-<\/span><\/p>\n
earlier proposal to suit the interest of certain other persons including<\/p>\n
the Vice President of the Panchayat and the relatives of the Vice<\/p>\n
President of the Panchayat who own lands near to his property.        The<\/p>\n
allegation was that the present proposal has been mooted so that the<\/p>\n
establishment of the market by acquiring Sri.Mathew’s property will<\/p>\n
result in appreciation of the land value of those properties.<\/p>\n
Dispensation of the enquiry under section 5A had been challenged in<\/p>\n
that writ petition on various grounds. It had been contended that the<\/p>\n
establishment of a market very close to the temple was likely to<\/p>\n
arouse communal tensions in the locality since the market is going to<\/p>\n
have facilities for cow slaughtering and sale of beef. Suffice to say that<\/p>\n
all conceivable contentions against the proposal had been raised by<\/p>\n
Sri.P.C.Mathew in his writ petition. Ext.P1 is the judgment in the writ<\/p>\n
petition filed by Sri.P.C.Mathew. It has been noticed under Ext.P1 that<\/p>\n
the allegations of mala fides projected in the context of the so called<\/p>\n
involvement of the Vice President of the Panchayat and properties<\/p>\n
belonging to him and his relatives remained as an allegation and it was<\/p>\n
not substantiated by any convincing material. I had noticed that the<\/p>\n
non-impleadement of the Vice President of the Panchayat against<\/p>\n
whom allegations had been levelled was futile. I had also found that<\/p>\n
WP(C)N0.694\/08
\n                                    -7-<\/span><\/p>\n
even if the Vice President had been impleaded eo nomine then also it<\/p>\n
could not have been possible for the petitioner to substantiate the<\/p>\n
allegations since no material worth the name had been produced by<\/p>\n
the petitioner. It was found in Ext.P1 that the public nature of the<\/p>\n
proposal is beyond question and that the proposal is that of the local<\/p>\n
authority which should be expected to know the ground realities of the<\/p>\n
locality and to feel the pulse of the local people. I had also found that<\/p>\n
establishment of a public market and taxi stand in the place of the<\/p>\n
existing unsatisfactory arrangements will certainly be beneficial to the<\/p>\n
public inhabiting the Panchayat and that there is justification even for<\/p>\n
an initial presumption that the proposal is neither mala fide nor<\/p>\n
colourable exercise of power as alleged.        Overruling the challenge<\/p>\n
against the order according sanction for invocation of emergency<\/p>\n
provisions I had found that the Government had considered            the<\/p>\n
relevant materials and apply its mind to the question invocation of<\/p>\n
emergency provisions was necessary. In doing so, I had repelled the<\/p>\n
arguments raised on behalf of the petitioner that establishment of the<\/p>\n
market in proximity to the temple will arouse communal tensions in<\/p>\n
the locality.    I had in fact found       relying on the property tax<\/p>\n
assessment register maintained by the Panchayat that the so called<\/p>\n
WP(C)N0.694\/08
\n                                   -8-<\/span><\/p>\n
temple is not a public temple at all. I had also accepted the contention<\/p>\n
of the Panchayat that the apprehensions of communal tension are<\/p>\n
without basis.   I had ultimately concluded that the request of the<\/p>\n
Panchayat to the Government for invocation of the emergency<\/p>\n
provisions was justified since the same was in the wake of successive<\/p>\n
orders passed by this court including an order in a contempt of court<\/p>\n
case.  Thrust was given by Advocate Rajesh in his submissions on<\/p>\n
Sections 57(1), 57(2) and 65 of the Panchayat Raj Act. It was argued,<\/p>\n
invocation of the emergency provisions of the Land Acquisition Act can<\/p>\n
be had only for discharge of the mandatory functions of the Panchayat<\/p>\n
as per III Schedule to the Panchayat Raj Act. Establishment of market<\/p>\n
and taxi stand do not come within the mandatory functions and at the<\/p>\n
most can come under sector wise functions.         Strong reliance was<\/p>\n
placed by Mr.Rajesh on the judgment of this court in Dr.Noor<\/p>\n
Mohammed v. District Collector,<\/a> 1981 KLT 816.         Sri.Mathew John,<\/p>\n
learned counsel for the Panchayat and Sri.Basanth Balaji, learned<\/p>\n
Govt. Pleader would meet the submissions of Mr.Rajesh by highlighting<\/p>\n
Ext.P1 judgment and also the subsequent judgment in WP(C). No.<\/p>\n
5773 of 2008.\n<\/p>\n
     5. In reply Mr.Rajesh would submit that the issue has never been<\/p>\n
WP(C)N0.694\/08
\n                                  -9-<\/span><\/p>\n
examined by this court in the context of the provisions of the<\/p>\n
Panchayat Raj Act or in the light of this Court’s judgment in Dr.Noor<\/p>\n
Mohammed’s case. I have considered the rival submissions in the light<\/p>\n
of the statutory provisions and the judgment of this court in Dr.Noor<\/p>\n
Mohammed’s case. It is true that in Dr.Noor Mohammed’s case this<\/p>\n
court has indicated that emergency provisions of the Land acquisition<\/p>\n
Act cannot be invoked if the purpose of the acquisition is not discharge<\/p>\n
of the mandatory functions of the Panchayat. To that extent the ratio<\/p>\n
in that case supports the grounds raised by the petitioner. But at the<\/p>\n
same time it has been laid down in Dr.Noor Mohammed’s case itself<\/p>\n
that for discharge of mandatory functions of the Panchayat also<\/p>\n
acquisition can be permitted under the ordinary provisions of the Land<\/p>\n
Acquisition Act.    In the instant case the Panchayat was under<\/p>\n
compulsion of writs of this court and under the threat of initiation of<\/p>\n
contempt proceedings to complete the acquisition proceedings within a<\/p>\n
time frame. The writ court was as much binding on the Panchayat as<\/p>\n
the statutory provisions. It is taking note of the writs issued by this<\/p>\n
court and the orders passed by this court in C.C.C. Initiated at the<\/p>\n
instance of persons in whose favour writ had been issued against the<\/p>\n
petitioner directing the Panchayat to complete the acquisition within a<\/p>\n
WP(C)N0.694\/08
\n                                   -10-<\/span><\/p>\n
time frame and Ext.P1 judgment the challenge against the invocation<\/p>\n
of the emergency provisions was repelled. As stated in Ext.P1 the<\/p>\n
purpose of the acquisition is beyond controversy. The Government<\/p>\n
order according sanction for invocation of emergency provisions have<\/p>\n
been upheld in Ext.P1. The scope of an enquiry under section 5A is<\/p>\n
mainly to convince the land acquisition officer that acquisition of the<\/p>\n
petitioner’s property is not necessary for accomplishment of the public<\/p>\n
purpose and dissuade the land acquisition officer against such<\/p>\n
acquisition. The grounds which the petitioner wanted to raise before<\/p>\n
the land acquisition officer in section 5A enquiry are obviously similar<\/p>\n
to the grounds raised by Sri.P.C.Mathew in Ext.P1 case. The findings<\/p>\n
of this court in Ext.P1 judgment in my opinion will apply to this case<\/p>\n
also. Challenge against the government order according sanction for<\/p>\n
invocation of emergency provisions is repelled. The other prayers are<\/p>\n
also declined. The writ petition will stand dismissed.<\/p>\n
                                     (PIUS C.KURIAKOSE, JUDGE)
\nksv\/-\n<\/p>\n
WP(C)N0.694\/08
\n                  -11-<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Govindan Nair vs The Secretary on 12 June, 2008 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-102366","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nGovindan Nair vs The Secretary on 12 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/govindan-nair-vs-the-secretary-on-12-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Govindan Nair vs The Secretary on 12 June, 2008 - 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