Kerala High Court
Eleeswa vs Greater Cochin Development Authority on 14 October, 2008
Author: Pius C.Kuriakose
Bench: Pius C.Kuriakose
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32463 of 2005(M)
1. ELEESWA, W/O.LATE JOSEPH,
... Petitioner
2. CLEETUS, S/O.LATE JOSEPH,
3. JAMES, S/O.LATE JOSEPH, THANNIKOT
Vs
1. GREATER COCHIN DEVELOPMENT AUTHORITY,
... Respondent
2. THE SPECIAL TAHSILDAR (LA),
3. THE STATE OF KERALA, REPRESENTED BY ITS
4. NAZIR, PUTHENPARAMBIL HOUSE,
For Petitioner :SRI.N.HARIDAS
For Respondent :SRI.P.R.RAMACHANDRA MENON, SC,GCDA
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :14/10/2008
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C)No. 32463 OF 2005
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Dated this the 14th day of October, 2008
J U D G M E N T
The petitioners are the legal heirs of late Thannikot Joseph, being his widow and sons. The first respondent is the Greater Cochin Development Authority. The second respondent is the Land Acquisition Tahsildar attached to the first respondent and the third respondent is the State. The Petitioners submit that by virtue of Ext.P1 their predecessor Sri.Thannikot Joseph owned 2.75 acres of land in Elamkulam Village. In the year 1981 late Joseph and petitioners came to know that 2.42 acres from out of their properties covered by Ext.P1 has been freezed by the first respondent for a scheme by name Elamkulam Road Scheme in contemplation of acquisition. Since petitioners had no property other than those covered by Ext.P1 they requested the first respondent several times for release of at least a portion for the purpose of construction of a residential building for them. Respondents 1 and 3 would arbitrarily declined the petitioner's request though substantial extent belonging to other persons originally frozen were given exemption from acquisition. Petitioners submit that even before award under the Land Acquisition Act was passed the properties were taken from their WP(C)N0.32463/05 -2- possession pursuant to a notice dated 11-12-1981 on 14-12-1981. At the time of taking possession a paltry amount of Rs.1,25,000/- was paid as advance compensation. The petitioners alleged that though their properties were taken over for implementation of the Elamkulam Road Scheme what the first respondent did thereafter was to sell an extent of 1.25 acres from out of the properties taken over to the nearby Matha Nagar Church for the purpose of running an school. Running of school, they point out, was not the purpose of the acquisition nor was it a purpose covered by Elamkulam Road Scheme. Once possession of the property was obtained the pace of the proceedings for land acquisition slowed down. When the delay became inordinate the petitioners submitted a representation through then Member of Parliament representing Ernakulam for release of at least a portion of the property taken over by them for the construction of a residential building. To that representation the first respondent issued Ext.P2 reply informing that it is impossible to grant the request since possession of the property had been taken over on 14-12-1981. Since they were experiencing untold miseries and hardships on account of the delay in completion of the land acquisition proceedings and passage of the award the petitioners persistently requested for WP(C)N0.32463/05 -3- accelerating the proceedings for acquisition and even offered to negotiate the matter with the first respondent on condition that award is passed by 15-7-1988, but all the requests and offers of the petitioner turned futile. At last an award was passed on 16-5-1989 awarding total compensation inclusive of statutory benefits at Rs.11,04,081/-. Since objection was raised by one daughter of late Joseph, the amount was deposited under section 31(2) before the L.A. Court. Petitioners sought for a reference under section 18 since the compensation was far below the market value of the acquired property and accordingly L.A.R. No. 264/90 was registered by the Sub Court, Ernakulam. The above LAR was answered by the Court on 31- 1-1991 enhancing the compensation. Against the judgment of the Sub Court, the second respondent preferred an appeal as L.A.A. No. 852/92. That appeal was allowed to a limited extent resulting in deduction of the compensation fixed by the Sub Court. Petitioners submit that as on the date of the writ petition a total amount of Rs.65,19,393/- is due as balance to the petitioners and other legal heirs of Sri.Joseph towards compensation for the acquired property. The petitioners submit that no portion of the properties which were acquired from them was utilised for the Elamkulam Road Scheme for WP(C)N0.32463/05 -4- which the properties were acquired . Apart from the extent of 1.25 acres sold to Matha Nagar Church, 50 cents was sold to four other individuals for a much higher value. The remaining extent of 50 cents of wet land until recently was lying vacant and unused. Under the above circumstances Mr.Jeslin Varghese, a grandson of the first petitioner submitted Ext.P3 representation before the then Minister for Local Administration. The second petitioner also submitted a similar representation before the first respondent. To that representation the first respondent sent Ext.P4 reply informing that the aforementioned extent of 50 cents is going to be sold in public auction and that the second petitioner is also free to participate in the auction proceedings. Petitioners allege that it is clear that there was no public purpose behind acquisition of their properties. Bulk of the acquired properties have been sold to private institutions and private individuals without utilising the same for the purpose for which the properties were acquired. The remaining extent is also going to be sold in public auction. According to them the acquisition proceedings were not for public purpose but was invasion into their proprietary rights. It is come to understand that on 12-11-2005 respondents 1 to 3 conducted a public auction and in that auction the aforementioned 50 cents of WP(C)N0.32463/05 -5- land which had been acquired from the petitioners was sold to the 4th respondent in the writ petition accepting his bid at the rate of Rs.5.25 lakhs per cent. On the above averments the petitioners have raised several grounds and filed the writ petition seeking the following reliefs:
1. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P4.
2. Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the acquisition proceedings initiated by respondents 1 to 3 in relation to the land acquired by them from the petitioners and other members of their family for the purpose of Elamkulam Road Scheme, is illegal and contrary to law since the acquired property is not utilised for the purpose for which it is acquired or for any other public purposes.
3. Issue a writ of certiorari or any other appropriate writ order or direction quashing the auction proceedings held on 12-11-
2005 in respect of the 50 cents of wet land acquired from the petitioners and other members of their family, which is lying vacant and unutilised even now and for which the 4th respondent offered the maximum land value at the rate of Rs.5.25 lakhs per cent, which the 1st respondent accepted.
4. Issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1 to 3 to restitute the 50 cents of wet land acquired from the petitioners and other members of their family to them, which is lying vacant and unutilised, for the value at the rate fixed by the 2nd respondent for wet land in the award dated 16-5-1989 in award No.6/89 in LAC. No.6/88 of the 2nd respondent.
2. On behalf of the first respondent, its Secretary has filed a detailed counter affidavit challenging maintainability of the writ WP(C)N0.32463/05 -6- petition. It is contended at the very outset that the acquisition proceedings became final by passage of the award way back in 1989 and that those proceedings were statutorily continued by the petitioners before the reverence court and that even the issue of compensation had attained finality by the judgment of this court in LAA No. 852/92. It is then contended that since concededly the acquired properties belong to other legal heirs of late Thannikot Joseph also the writ petition is bad for non-joinder of necessary parties.
3. The main contention of the petitioners that the acquired properties have not been utilised for the avowed public purpose of the acquisition has been answered in detail in the counter affidavit. It is submitted that the main purpose of the Elamkulam Road Scheme was the construction of a 22 metre wide road which has become a reality now on the commissioning of the Kaloor - Kadazvanthra Road. Major portion of the land acquired not utilised for the road purpose was utilised for giving alternate accommodation/rehabilitation to eligible among the victims of the acquisition. It is pointed out that the old Elamkulam Road connecting Kaloor - Kadavanthra passes through Kaloor DTP Scheme and Elamkulam Road DTP Scheme. The Elamkulam Road connecting Kaloor and Kadavanthra has now been WP(C)N0.32463/05 -7- developed to a width of 22 metres from Kaloor to Kadavanthra and is known as Kaloor Kadavanthra Road. Since the road widening project is non-remunerative in nature it became essential to club the road project with remunerative activities like land development, so that the scheme will be viable. The GCDA acquired the land for the scheme as a whole which included formation of road, rehabilitation purposes, residential use etc. providing sufficient infrastructure. Out of the acquired land other than those used for construction of actual road land was allotted for construction of Matha Nagar School which is an aided school and also for construction of Judges' Quarters besides constructing and allotting 36 houses for rehabilitating the slum dwellers. 6.10 acres of land acquired for the purpose of Kaloor - Kadavanthra Road Project was utilised within the Elamkulam Road Scheme area and about 1.75 acres within the Thevara - Perandur Canal Scheme area for rehabilitation purposes. Huge amounts have been invested by the GCDA for infrastructure development of the area including Kaloor - Kadavanthra Road with a railway over bridge at Kathrikadavu and the left over land after implementation of the Scheme is being sold in public auction by the GCDA is fully in conformity with the mandates of the scheme and provisions of law WP(C)N0.32463/05 -8- including binding judicial precedents. It is pointed out that as per the provisions of the scheme the GCDA is entitled to dispose of any land belonging to the authority or acquired under the scheme by sale/auction/exchange/lease or otherwise. Matha Nagar School is a public institution which is essential for the residents of the area and this was why a portion of the acquired land was sold to Matha Nagar Scheme. The auction, it is claimed, was in conformity with the provisions of the scheme. It is then submitted that the 50 cents of land in question was also reserved for the rehabilitation of the evictees from the Kaloor - Kadavanthra Road. Since the rehabilitation process is over the above land was included in the public tender/auction since the scheme provides that the GCDA can dispose of any land belonging to the GCDA. The counter affidavit denies the claim of the petitioner that a sum of Rs.65,26,802/- is due to them and the other co-owners of the property towards land acquisition compensation under the decree. It is submitted that on a correct calculation made by the second respondent the amount was found to be Rs.9,17,936/- only and the above amount was remitted by the GCDA on 10-10-2003. It is conceded that execution petition claiming an amount of Rs.65,26,802/- is pending. But it is pointed out that the E.P. is being WP(C)N0.32463/05 -9- contested.
4. To the above counter affidavit the petitioners have filed a reply affidavit reiterating their contentions. As regards contention that the writ petition is bad for non-joinder of necessary parties it is submitted that the petitioners are entitled to maintain the writ petition for the benefit of all the members of the family. It is further submitted that by way of abundant caution application for impleadment of the other legal heirs of late Joseph is being filed.
5. I have heard the submissions of Sri.N.Haridas, learned counsel for the petitioner, Sri.P.R.Ramachandra Menon, learned standing counsel for the GCDA, Smt.Latha Thankappan, learned senior Government Pleader and Sri.P.Satheesan, learned counsel for the 4th respondent.
6. Sri.Haridas would address at length on the facts pertaining to the case and would highlight the circumstances which attend on this case. He submitted that not even an inch of land which was acquired from the possession of the petitioners has been used for the purpose of construction of the Kaloor - Kadavanthra Road which was the main purpose of the Elamkulam Road Scheme. A substantial portion of the property was sold to a religious institution so that the facilities WP(C)N0.32463/05 -10- available in a private school managed by that institution can be enhanced. The above sale was outside the avowed purpose of the acquisition. Thereafter like real estate business men portions were sold to 4 private individuals. This action ad nothing to do with the purpose of the acquisition and lastly discarding a very genuine claim of the petitioners for release of the remainder portion extending to 50 cents which was lying unused, that portion was also sold in public auction to the 4th respondent. Mr.Haridas would rely on various judicial authorities in support of his argument that if the acquired land is not used for the avowed purpose of the acquisition there is justification for re-conveying the same to its original owners. Inter alia Mr.Haridas relied on the judgment of the Division Bench of the Madras High Court in Commissioner, Corporation of Chennai v. Mrs.Lakshmi Bai, AIR 2005 NOC 314 (Madras), the judgment of the Supreme Court in Govt. of A.P. v. Syed Akbar, AIR 2005 SC 492, and the judgment of the Supreme Court in Tulsi Co-op. Housing Society, Hyderabad v. State of A.P. AIR 1999 SC 3667. Sri.P.R.Ramachandra Menon, learned standing counsel for the GCDA who piloted the submissions in resistance to the writ petition would take me extensively from the contentions raised in the counter affidavit. He pointed out that the WP(C)N0.32463/05 -11- initial notification under section 4(1) and the declaration under section 6 of the L.A. Act are not under challenge at all. Without challenging them it is not possible for anybody to successfully challenge any proceeding for acquisition under the Land Acquisition Act. He submitted that the petitioners are not entitled to maintain this writ petition in a representative capacity on behalf of the other co-owners of the property. He highlighted that it is conceded in the writ petition itself that there was difference of opinion between the petitioners and at least one of the daughters of late Joseph who was co-owner. He submitted that the application for impleadment filed belatedly in 2008 after the writ petition was dated for hearing once dismissed though for default cannot be entertained. He pointed out that even now the petitioner has not chosen to implead either the Matha Nagar School nor the 4 individuals who are the owners of portions of the acquired property having purchased the same from the GCDA. Strong reliance was placed by Mr.P.R.Ramachandra Menon to the judgment of the Supreme Court in Northern Indian Glass Industries v. Jaswant Singh and others, (2003) 1 SCC 335, Govt. of A.P. And another v. Syed Akbar, (2005) 1 SCC 558, Haryana Urban Development Authority v. Nathu Ram, (2005) 1 SCC 567, Tamil Nadu Housing Board v. WP(C)N0.32463/05 -12- Keeravani Ammal & others, AIR 2007 SC 1691. He laced strong reliance also on the judgment of the Supreme Court in State of Kerala v. M.Bhaskaran Pillai, AIR 1997 SC 2703.
7. Senior Government Pleader Smt.Latha Thankappan would support all the submissions of Mr.P.R.Ramachandra Menon. She pointed out that Matha Nagar School is an aided School to which the Kerala Education Act and Rules apply. The existence of the School, according to her, is the need of the public of the locality and the transfer of property by GCDA for the purpose of the School was a transfer made in public interest. She pointed out that in the absence of the school, the assignment of property to the school cannot be allowed to be challenged. On behalf of Mr.P.Satheesan, it was submitted that the 4th respondent is the bona fide purchaser for value. The public auction in which he participated was conducted lawfully and as mandated by judgments of the Supreme Court. Fourth respondent succeeded in the auction because his was the highest bid. Very substantial amount exceeding Rs.2 crores has been invested by the 4th respondent on the property purchased by him in auction and because of the interim order of stay passed by this court the 4th respondent is unable to enjoy the property purchased by him. As far as WP(C)N0.32463/05 -13- Sri.N.Haridas in his submissions in reply would try to distinguish the decisions cited at the Bar by Sri.P.R.Ramachandra Menon. Mr. Haridas submitted that the petitioners do not as such challenge the proceedings for acquisition. Their prayer now is only that the auction which has been confirmed in favour of the 4th respondent in respect of 50 cents of land which was remaining unused be cancelled and this 50 cents be conveyed to the petitioners for the correct market value. Petitioners have a preferential claim since the property belong to them and it is now revealed that it was absolutely unnecessary to have acquired that property for the purpose of construction of the Kaloor - Kadavanthra Road.
8. I have considered the rival submissions made at the Bar. I have scanned the pleadings and the documents produced. I have kept in mind the relevant statutory provisions and also the ratio of the various decisions cited before me. I have dismissed the belated application filed by the petitioners for impleading the other legal heirs of late Thannikot Joseph who were co-owners to the property which is subject matter of this writ petition. The attempt of the petitioner to maintain the writ petition as one filed for the benefit of all the co- owners has to fail since it is conceded by the petitioners themselves WP(C)N0.32463/05 -14- that differences of opinion arose between the co-owners necessitating deposit of the original compensation awarded by the L.A. Officer before the reference court under section 31(2). Apart from the non- junction of all the co-owners to the acquired property at least in the array of respondents in the writ petition it is to be noticed that in the nature of the allegations levelled in the writ petition it was necessary for the petitioners to have impleaded the Matha Nagar School and also the four persons who had purchased portions of the acquired properties from the GCDA. Even though Mr.N.Haridas would submit that the petitioners are now confining their prayers to the one for assignment of the 50 cents covered by the auction in favour of the 4th respondent it cannot be ignored that the situation that the petitioner is not challenging the assignment in favour of Matha Nagar School and in favour of the 4 other purchasers will be of consequence on the petitioners' prayer for assignment also.
9. It is obvious that the proceedings for acquisition under the Land Acquisition Act have attained finality. Possession was taken long ago and by virtue of section 16 of the Land Acquisition Act the properties stood vested in the Government and by delivery of possession by the Government to the GCDA in the GCDA along ago. WP(C)N0.32463/05 -15- The L.A. Officer passed award and from his point of view since possession had already been taken and passage of the award amounts to culmination of the L.A. proceedings. Petitioner however, was not prepared to accept to accept the award since he was not satisfied with the adequacy of the compensation determined. Here again what is significant is that the petitioners do not challenge the competence of the L.A. Authority to pass the award. On the contrary his grievance is only regarding the compensation determined. He seeks redressal of that grievance by invoking statutory process provided under section 18 of the L.A.Act. Evidence was adduced by the petitioners before the Land Acquisition Reference Court seeking enhancement in land value for the acquired property including the 50 cents claimed presently by them. Their claims were upheld to a considerable extent by the Reference Court and that Court enhanced the compensation considerably. The GCDA requisitioning authority preferred appeal before this Court which was resisted by the petitioners obviously on the ground that it is a correct compensation which has been fixed by the Reference Court. This Court disposed of the appeal and became inclined to interfere with the award of the Reference Court only to a limited extent. What is important is that before this Court also the WP(C)N0.32463/05 -16- petitioners had acquiesced at the competence of the L.A. Officer and the legality of the action taken under the L.A. Act and confined their grievances to the compensation determined alone. It is extremely doubtful whether in the background of the action taken in this case by the L.A. Officer, by the petitioners, Reference Court and this Court under the provisions of the L.A. Act the petitioners can stake a claim for re-assignment or re-allotment of any portion of the acquired property.
10. I am not impressed by the argument of Mr.Haridas that the entirety of the properties which were acquired from his clients are being used for private purposes. The contention raised by the GCDA in the above regard are quite convincing though the main purpose of the Elamkulam Road Scheme was the construction of the 22 metre wide road Kaloor Kadavanthra Road. It was obligatory for the GCDA to provide alternative accommodation/rehabilitation in connection with the achievement of that purpose. The new Kaloor Kadavanthra Road has been constructed in substitution of the old Elamkulam Road. The old Elamkulam Road passed through Kaloor DTP Scheme and Elamkulam Road DTP Scheme. The road widening project as rightly contended by the GCDA is non-remunerative in nature and it became WP(C)N0.32463/05 -17- essential for the GCDA to club the road project with remunerative activities such as land development in order that the scheme will become financially viable. It was not the land necessary for the carriage way of road which alone was acquired by the GCDA, instead land was acquired by the GCDA for the scheme as a whole, which included formation of the road, rehabilitation purposes, residential use etc. providing sufficient infra structure. The explanation of the GCDA that out of the land acquired, utilised for the purposes other than the carriage way of the road, various extents were allotted for Matha Nagar School, for construction of Judges' Quarters, besides constructing and allotting 36 houses for rehabilitating slum dwellers is quite convincing. Equally convincing is the explanation of GCDA that 6.10 acres of acquired land has been utilised within the Elamkulam Road Scheme area and about 1.75 acres have been utilised in the Thevara - Perandur Canal Scheme area for rehabilitation purpose. The GCDA's contention that they have invested huge money for the infrastructural development of the area including construction of Kaloor
- Kadavanthra Road with a railway over bridge at Kathrikadavu and the left over land after implementation of the scheme had to be sold in public auction is quite convincing. The claim of the GCDA that such WP(C)N0.32463/05 -18- sales are in conformity with the relevant provisions of the law and the scheme is also acceptable. It is trite by now and clear from the statutory provisions such as section 16 of the Land Acquisition Act that once land is acquired and possession is taken the land vests in the State and if the State transfers possession to the requisitioning authority, with the requisitioning authority and that the previous owner has no right to seek re-vesting of the land in himself on the ground that the land is not used for the purpose for which it was acquired. The issue is decided by the Supreme Court in Northern Indian Glass Industries v. Jaswant Singh and others, (2003) 1 SCC 335. Equally trite is the position that the Government or the requisitioning authority is entitled to make use of unused lands once the public purpose behind the acquisition has been achieved. See judgment of the Supreme Court in Govt. of A.P. And another v. Syed Akbar, (2005) 1 SCC 558. Then the question is whether GCDA was justified in selling the properties to private individuals or institutions. Since the very purpose of the sale was to recoup itself for the investments and expenditure incurred for public purposes the purpose of sale can also be treated as public purpose. As for the legality and propriety of the public auction conducted by the GCDA for sale of the 50 cents of land unused WP(C)N0.32463/05 -19- presently claimed by the petitioners the issue is again covered by the judgment of the Supreme Court in State of Kerala and others v. Bhaskaran Pillai and another, AIR 1997 SC 2703. Opportunity was given to the petitioners also to participate in that public auction and they do not have any case in this Court that they did not receive such opportunity.
11. Result of the above discussions is that the writ petition will fail and will stand dismissed, but in the circumstances the parties are directed to suffer their costs.
(PIUS C.KURIAKOSE, JUDGE) ksv/-