Kerala High Court
P.K. Abdul Latheef vs State Of Kerala on 4 August, 2008
Author: Pius C.Kuriakose
Bench: Pius C.Kuriakose
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35572 of 2007(I)
1. P.K. ABDUL LATHEEF,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE SPECIAL TAHSILDAR (LA), KOZHIKODE.
3. THE CHIEF ENGINEER (ROADS AND BRIDGES),
For Petitioner :SRI.B.RENJITH MARAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :04/08/2008
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C)Nos. 35572 of 2007 & 7018 of 2008
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Dated this the day of August, 2008
J U D G M E N T
The petitioner is aggrieved by the land acquisition proceedings proposing to acquire his property covered by Exts.P1 and P2 for the construction of an approach road and the widening of the same in connection with the construction of a bridge on Parakkadavu in Kozhikode Division of the State Public Works Department (Roads and Bridges). Ext.P3 is the composite notification under section 4(1) and 17(4). It is stated in Ext.P3 that in view of the urgency of the need enquiry under section 5A has been ordered to be dispensed with. Pursuant to Ext.P3 notice under rule 9 of the Land Acquisition Rules showing the details of the properties proposed to be acquired has also been issued and Ext.P4 is copy of the said notice. Item No.4 in Ext.P4 is property of the petitioner. On receiving Ext.P4 the petitioner submitted Ext.P5 representation highlighting the hardship he will have to suffer in case the acquisition of his property is insisted upon. It is stated in Ext.P5 that if the petitioner's property is acquired his residential building will come to be on the very edge of the approach road, which will render a peaceful life in the building is impossible. The petitioner submits that the proposal is to acquire his property to a WP(C)N0s.35572/07 & 7018/08 -2- width of 7 metres from the edge of the road to the property on the opposite side of the road belonging to another person will be acquired only to the extent of 2 metres. The present proposal is in deviation from the original plan which was to acquire equally from the petitioner's property and also from the property on the opposite side. Petitioner submits that if the original plan is implemented without deviation the prejudice will not be caused to anybody. Referring to section 62 of the Kerala Land Acquisition Act and subsection 2 of section 5 of the State Reorganization Act 1956 the petitioner contends that the present proceedings initiated under Central Land Acquisition Act are without jurisdiction and hence void. Raising various grounds the petitioner prays in this writ petition for the following reliefs.
i. Call for the records leading to Ext.P3 and P4 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction as this Court deem fit in the facts and circumstances of the case.
ii. Declare that the law applicable to acquisition and requisition in the State of Kerala is Kerala Land Acquisition Act 1961 and not Land Acquisition Act 1894.
iii. Issue a writ in the nature of mandamus or any such other writ, direction or orders commanding the respondents to consider and pass orders on Ext.P5 representation within a time frame to be fixed by this Court.
iv. Issue a writ in the nature of mandamus commanding the respondents to afford an opportunity of being heard to the WP(C)N0s.35572/07 & 7018/08 -3- petitioner before any proceedings are initiated on the basis of Exts.P3 and P4.
2. On considering this writ petition for admission this court on 9- 1-2008 issued notice to R2 and R3, Special Tahsildar L.A. and the Chief Engineer (Roads and Bridges) and directed the Government Pleader to took notice on behalf of the fist respondent State of Kerala to make available the land acquisition file and also stayed dispossession of the petitioner from his properties for two weeks. The interim order restraining dispossession on being extended from time to time is in currency. The second respondent L.A. Officer has filed a detailed statement. It is contended therein that the acquisition proceedings was initiated on the basis of a valid requisition received from the Executive Engineer (Bridges and Roads) for the construction of Parakadavu Bridge and the approach road. The Executive Engineer requested for invocation of the urgency clause since the public and the representatives public were constantly pressing for early realisation of the project which will provide considerable convenience to the public for reaching the institutions such as Calicut Medical College, Indian Institute of Management and N.I.T etc. It is in view of the urgency of the work that the Land Revenue Commissioner issued order No.LR(C4) 15795/07 dated 19-4-2007 in exercise of powers under subsection (4) WP(C)N0s.35572/07 & 7018/08 -4- of section 17 and exempted section 5A enquiry. Notification under section 34(1) has been made and published in the Gazette as well as in Mathrubhumi daily and Deshabhimani daily which was served on all known interested parties and published in the Village Offices concerned and on the site. Many of the owners on realising the urgency of the need surrendered their lands in advance and those lands have already been handed over to the requisitioning authority. The acquisition is being challenged by the present petitioner and by one Basheer Karippal Thazhem, the petitioner in WP(C). No. 7018 of 2008. The statement repudiates the grounds taken by the petitioner that the Central Acquisition Act does not have any application in Kerala. It is pointed out that all proceedings for land acquisition presently come under the purview of the Central Land Acquisition Act and section 55 (1) of the Central Land Acquisition Act empowers the State Government to make rules. It is claimed in the statement that the notification under section 4(1), under rule 3(c) and notice under rule 4
(b) have all been made and published and served in accordance with law and hence valid. It is claimed that the acquisition is to achieve an eminently genuine public purpose which is expected to give relief to the people inhabiting the area who will be able to access to important WP(C)N0s.35572/07 & 7018/08 -5- institutions like Medical College, I.I.M., N.I.T. etc. quickly. On behalf of the requisitioning authority the Assistant Engineer, Bridges Section, Calicut has filed a detailed counter affidavit. The counter affidavit refers to the Government Order, G.O.(Rt) No. 460/06/PWD dated 19- 6-2006 according sanction for acquisition of land for construction of the Parakadavu Bridge connecting Kuruvattoor and Kunnamangalam Panchayats in Kozhikode District. Pursuant to that order the requisitioning authority Executive Engineer Roads Division, Kozhikode requisitioned the land acquisition authority to acquire a total extent of 58 Ares of land in Kunnamangalam and Kuruvattoor Villages on the terms of G.O.(Rt.) No. 460/06/PWD. It is also ordered to acquire the land by invoking the emergency provisions under section 17 since the lands are urgently required in the light of the pressure frequently exerted by the public and the representatives of the people for early completion of the work. If the work is completed the local people will get a lot of convenience to reach NH 212 leading to Wayanad and access to Kozhikode city and the institutions like Calicut Medical College and the NITC. It is submitted that some of the occupants of the land under acquisition have already surrendered possession to the PWD. Requisition has been made by the PWD only as per the WP(C)N0s.35572/07 & 7018/08 -6- approved alignment of the bridge. The central line of the approach road passes through the property of the petitioner in WP(C). No. 35572 of 2007 and the proposed acquisition is based on the above situation and therefore more extent of land has to be taken from the northern side of the existing boundary than from the southern side. The counter affidavit denies the contention that 7 metres width of land from the edge of the road is taken from the petitioner's property. It is then contended that the alignment of the bridge and the approach road is fixed taking into consideration various factors such as hydraulic particulars of river, width of the river and various investigation reports and is approved by Chief Engineer ( R & B) Thiruvananthapuram. The immediate approach to the bridge is straight and any deviation from the proposed alignment may ruin the entire project. Thus the contention of the petitioner that more land is being acquired from his side is baseless. The construction of the bridge is in progress and the entire project has to be completed in a time bound manner. The petitioner has filed a detailed reply affidavit reiterating his contentions and denying the contentions raised by the land acquisition officer and the requisitioning authority. It is highlighted that there has been no application of mind at all by the Government regarding the urgency of WP(C)N0s.35572/07 & 7018/08 -7- the need and the justification in dispensing with enquiry under section 5A. Judgments of the Supreme Court governing the point have been ignored by the concerned. The reply affidavit also reiterates the contention that the original plan has been deviated by and large and it is alleged that is only to protect the interest of certain persons who would have been affected if acquisition has been made as per the original plan that the deviation has now been made.
3. WP(C). No. 7018/08 is filed by one Basheer Karippal Thazhem and he is also aggrieved by the proceedings for acquisition. He also alleges that there has been deviation from the original plan and that the proceedings are started with mala fides. Deviations have been made in the original proposed plan for protecting the interest of certain others. Enquiry under section 5A has been dispensed with without any valid reason. His residential building will be affected if the acquisition is permitted as per the present proposal. In this case also pleadings similar to that is raised in WP(C). No. 35572/07 have been raised by the party. The prayers in this writ petition are also similar to those in WP(C). No. 35572/07. Along with I.A.7825/08 the petitioner produced as Ext.P6, a copy of government Order, G.O.(Rt.) No.406/06/PWD dated 9-6-06 according sanction for invocation of the WP(C)N0s.35572/07 & 7018/08 -8- urgency provision of the Land Acquisition Act. Since this order did not reflect application of mind by the Government as to whether there was real urgency I directed production of the Chief Engineers letter which is referred to in this order. Accordingly the Chief Engineer's letter referred to in Ext.P6 was produced by the Government Pleader against a memo riled in WP(C). No. 7018 of 2008.
4. Arguments were addressed before me by Sri.L.Rajesh Narayanan, counsel for the petitioner in both the cases and by Sri.Basant Balaji, learned Government Pleader for the respondents. Sri.Rajesh Narayanan would place strong reliance on the judgment of the Supreme Court in Union of India and others v. Mukesh Hans, (2004) 8 SCC 14. He argued that urgency provisions of section 17 are to be invoked very sparingly and even when urgency provisions are invoked dispensation of section 5A is to be permitted only in exceptional cases of urgency. Power to dispense with Section 5A is not lightly resorted to. Learned counsel relied on the judgment of the Supreme Court in Union of India v. Krishan Lal Arneja and others, (2004)8 SCC 453. Reliance was placed by the learned counsel also on the judgment of this court in Chandrika Menon v. State of Kerala, 2008 (2) KLT SN 77 (case No. 90). Mr.Rajesh relied also on the judgment of WP(C)N0s.35572/07 & 7018/08 -9- this court in Benny Antony v. State of Kerala, 2008(1) KLT SN 32 (case No.36) to drive home his point that Section 5A enquiry is necessary and also that such an enquiry is to be conducted before declaration under section 6 is promulgated. Learned Govt. Pleader Mr.Basant Balaji would submit that construction of the Parakadavu Bridge and the approach road to that bridge which is indispensable for putting the bridge to use, which is an extremely genuine public purpose which is required to be accomplished immediately. There has been considerable application of mind by the Government in the matter of according sanction for invocation of the urgency provisions. The Land Revenue Commissioner also ordered that Section 5A enquiry need not be held in this case in view of the extreme urgency of the situation. Fixation of alignment of the bridge and the approach road are matters to be left to technical authorities. In the instant case where the alignment of the bridge is already fixed and construction of the bridge has been taken up. It is not possible to shift the alignment of the approach road which necessarily has to be in line with the bridge.
5. I have considered the rival submissions addressed at the Bar. There is absolutely no room for any controversy that the purpose of WP(C)N0s.35572/07 & 7018/08 -10- the acquisition, i.e., construction of a bridge at Parakadavu and approach road for that bridge within the Kozhikode Division of the Kerala State Public Works Department (Bridges and Roads) is a genuine public purpose. In fact no serious arguments were addressed before me by the learned counsel for the petitioner that the purpose of the acquisition is not a public purpose. Arguments were mostly addressed against the legality of the invocation of the urgency provisions of the Land Acquisition Act and the dispensation of the enquiry under section 5A. G.O.(Rt.) No. 460/06/PWD dated 29-6-06 has been produced as Ext.P6 in WP(C). No. 35572/07 andExt.P7 in WP (C) No. 7018 of 2008, the same reads as follows:
"As er the letter read above, the Chief Engineer ( R & B), Thiruvananthapuram has requested to acquire an extent 0.58 hectares of land in Kuruvattoor and Kunnamangalam Villages for the construction of Parakadavu bridge, in advance possession by invoking urgency clause.
2. Government have examined the mater in detail and are pleased to accord sanction for the acquisition of o.58 hectares of land in Kuruvattoor and Kunnamangalam Villlages in Kozhikode district for the construction of Parakadavu Bridge and approach road in advance possession by invoking urgency clause as stipulated in Circular No.6030/B1/94/RD dated 30-11-1996.
3. The details of land to be acquired are as shown below:
------------------------------------------------------------------------ District Taluk Village Re Survey No. Extent(hectares)
------------------------------------------------------------------------- Kozhikode Kozhikode Karuvattoor 39/1A,39/1B,40 0.4285 WP(C)N0s.35572/07 & 7018/08 -11- Kozhikode Kozhikode Kunnamangalam 3 1D/1A,3 1D/1B 3/1C,7/3,7/4 0.1515
------------------------------------------------------------------------- The above order did not reveal any application of mind by the Government regarding the urgency of the matter and the justifiability to dispensation of the enquiry under section 5A I directed the respondents to produce Chief Engineer's letter first under reference in the said order thinking that the Chief Engineer had applied his mind to the question and had submitted reasons before the Government which have probably considered by the Government while issuing order G.O (Rt.). 460/06/PWD dated 29-6-2006. The Chief Engineer's letter was accordingly produced and the same reads as follows:
"I am submitting herewith the L.A.Proposal for the above work with the following report:
Parakadavu bridge is proposed to construct across Poonoor river linking Kuruvattoor and Kunnamangalam. The Local M.L.A. and representatives of Panchayat is pressing for the early completion of the project. It is assessed that a total of0.58 hectores of land is to be accorded for the project from Kuruvattoor Village (0.4285 hector) and Kunnamangalam Village (o.1515 hector). The requisition for acquisition survey sketch Adangal etc. duly countersigned by revenue authorities are enclosed. Since the work is urgent one I request Government to issue necessary orders to acquire the said land in advance possess by invoking urgency clause."
This letter also only says that the local MLA and representatives of the WP(C)N0s.35572/07 & 7018/08 -12- Panchayat is pressing for early completion of the project and that since the work is urgent one Government may issue orders for acquisition by invoking urgency clause. This also in my opinion will not reveal that the Chief Engineer, head of the requisitioning department had applied his mind on the question whether the urgency which existed in this case (even if it did exist) so as to justify dispensation of an enquiry under section 5A. The learned counsel for the petitioner would submit that despite the assertion of the respondents that a shifting in the alignment of the approach road is impossible. There is possibility of making at least a minor shifting so that it may be possible to have the acquisition without touching the residential building of the petitioner in WP(C). No.7018 of 2008 and without affecting the residential building of the petitioner in WP(C). No. 35572 of 2007. To the present extent as part of a section 5A enquiry a local inspection in the presence of the parties and the representatives of the requisitioning authority can be conducted and this aspect of the matter could be founded, it is so submitted. The position is clearly settled that the right given to persons whose properties are proposed to be acquired by the Government in exercise of power of eminent domain to object to the acquisition to have an enquiry under section 5A is WP(C)N0s.35572/07 & 7018/08 -13- substantive right which can be taken away only on good and valid reasons and that when a decision is taken to do away with the right under section 5A the decision should be based on materials on record to support the same and keeping in mind the legislative object underlying section 5A. See Union of India and others v. Mukesh Hans (2004)8 SCC 14 paragraphs 32, 33, 35, 36 and 37. It is also clearly settled that the existence of public purpose however laudable it may be, but itself is not sufficient to resort to section 17 and that too to section 17(4) which mandates dispensation of enquiry under section 5A. The authority according sanction for invocation of section 17(4) necessitating dispensation of enquiry under section 5A will have to be satisfied on the basis of materials available on record. The very purpose of acquisition will be defeated unless the extraordinary power is invoked. See judgment of the Supreme Court in Union of India v. Krishan Lal Arneja and others, (2004)8 SCC 453, paragraphs 16, 30 and 31. The arguments of the learned counsel about the utility of a joint inspection as part of enquiry under section 5A which is to be conducted before the enquiry under section 6 is supported by judgment of this court in Chandrika Menon v. State of Kerala, 2008(2) KLT SN 77 and Benny Antony v. State of Kerala, 2008(1) KLT SN 32 WP(C)N0s.35572/07 & 7018/08 -14- The legal position emerging from the precedents cited at the Bar is that even in cases where there is justification for invocation of the urgency provisions under section 17(1) or under section 17(2) which is not applicable in this case. It is not obligatory that the Government or the concerned authority should also direct that the provisions under section 5A shall not apply and also that whenever the Government or the appropriate authority accord sanction for invocation of emergency provisions under section 17(1) or (2) and also the provisions of section 17(4) it is necessary that such invocation should be on the basis of a decision arrived at by the authority or the Government regarding the urgency of the situation and that necessity to dispense with enquiry under section 5A. There is nothing in the Government Order which is subject matter of this writ petition indicate that there has been any application of mind by the Government regarding justifiability of the dispensation of the enquiry under section 5A in this case. Under these circumstances even as I uphold the contention of the Government that the purpose of the acquisition is a genuine public purpose and that there is justification for invoking the emergency provisions under section 17(1) I feel that the Government should have a second look on the question as to whether it is necessary to dispense with enquiry WP(C)N0s.35572/07 & 7018/08 -15- under section 5A in this case. I therefore quash Ext.P6 in WP(C) No. 35572 of 2007 and Ext.P7 in WP(C). No. 7018 of 2008 and the order of the Government or the Land Revenue Commissioner dispensing with enquiry under section 5A and direct the Government to hear the petitioners in these cases and to take a fresh decision regarding the necessity to dispense with such enquiry. Since I am in agreement that the purpose of the acquisition is a public one and that there is justification for invoking section 17(1) I direct the Government to conduct the hearing and take decision as directed above at the earliest and at any rate within one month of receiving copy of this judgment.
PIUS C.KURIAKOSE, JUDGE) ksv/-