Kerala High Court
Aji Jose vs State Of Kerala on 31 October, 2009
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939
WP(C).No. 26928 of 2012 (M)
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PETITIONER(S):
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1. AJI JOSE, S/O.A.T.JOSE AGED 40 YEARS,
RESIDING AT ALAPPATTUKUNNEL HOUSE,
KIZHATHADIYOOR KARA, LALAM VILLAGE,
MEENACHIL TALUK, KOTTAYAM DSITIRCT.
2. DAWN JOSE, S/O.JOSEPH,
CHAVELIL HOUSE, CHERPUNKAL P.O., PALA.
BY ADVS.SRI.MATHEW JOHN (K)
SRI.P.C.HARIDAS
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETRIAT,
THIRUVANANTHAPURAM 695001.
2. LAND REVENUE COMMISSIONER,
THIRUVANANTHAPURAM 695001.
3. THE DISTRICT COLLECTOR,
KOTTAYAM 686001.
4. THE REVENUE DIVISIONAL OFFICER
PALA 686575.
5. SPECIAL TAHSILDAR (LA) GENERAL,
KOTTAYAM 686001.
6. CHIEF ENGINEER,
PUBLIC WORKS DEPARTMENT,
THIRUVANANTHPAURAM-695001.
7. EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT (ROADS),
KOTTAYAM 686001.
8. ASSISTANT EXECUTIVE ENGINEER,
ROADS SUB DIVISION,
PUBLIC WORKS DEPARTMENT (ROADS),
PALA 686575.
9. THE SECRETARY TO THE DEPARTMENT OF REVENUE,
GOVERNMENT SECRETRIAT,
THIRUVANANTHAPURAM 695001.
R1-R9 BY SR. GOVERNMENT PLEADER SRI. A.J. VARGHESE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 21-06-2017, ALONG WITH WPC. 28509/2012 AND
CON.CASES, THE COURT ON 28-06-2017 DELIVERED THE
FOLLOWING:
W.P.(C) NO. 26928 OF 2012
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT-P1. TRUE COPY OF THE SALE DEED NO.1559/2006 OF
MEENCHIL SRO.
EXHIBIT-P2. TRUE COPY OF THE SALE DEED NO.1559/2006 OF
MEENCHIL SRO.
EXHIBIT-P3 TRUE COPY OF THE ROUGH SKETCH.
EXHIBIT-P4 TRUE COPY OF THE SKETCH PREPARED BY THE
7TH RESPONDENT.
EXHIBIT-P5 TRUE COPY OF FORM NO9.10B DATED 31/10/2009
ISSUED TO THE 1ST PETITIONER.
EXHIBIT-P5 TRUE COPY OF THE RESOLUTION DATED 8/7/2009
OF THE PALA MUNCIPALITY.
EXHIBIT-P7 TRUE COPY OF THE G.O.(MS) NO.52/2009/PWD
DATED 14/8/2009.
EXHIBIT-P8 TRUE COPY OF THE G.O.(RT) NO.1209/09/PWD
DATED 19/8/2009.
EXHIBIT-P9 TRUE COPY OF THE IRC CODE.
EXHIBIT-P10TRUE COPY OF THE SCHEMATIC SKETCH OF THE
PARALLEL ROAD.
EXHIBIT-P11TRUE COPY OF THE ORDER DATED 20/11/2009 OF THE
3RD RESPONDENT.
EXHIBIT-P12 TRUE COPY OF THE ORDER DATED 6/2/2010
ISSUED U/S.6(1) OF THE SURVEY AND BOUNDARIES ACT.
EXHIBIT-P13TRUE COPY OF THE G.O.(RT) NO.1249/10/PWD DATED
3/8/2010.
EXHIBIT-P14TRUE COPY OF THE G.O.(RT) NO.1874/2010PWD
DATED 14/12/2010.
EXHIBIT-P15TRUE COPY OF THE REPRESENTATION DATED 7/6/2010
OF THE PETITIONER TO THE 6TH RESPONDENT.
EXHIBIT P16. TRUE COPY OF THE REPRESENTATION DATED
13/5/2010 OF THE PETITIONER TO THE CHIEF MINISTER.
EXHIBIT P17. TRUE COPY OF THE REPRESENTATION DATED
8/7/2010OF THE PETITIONER TO THE 6TH RESPONDENT.
EXHIBIT P18. TRUE COPY OF THE REPRESENTATION DATED
15/2/2011 OF THE PETITIONER TO THE MINISTER OF PWD.
EXHIBIT P19. TRUE COPY OF THE ORDER DATED 18/2/2011
U/S.17(4) OF THE LAND ACQUISTION ACT.
EXHIBIT P20. TRUE COPY OF THE ORDER DATED 18/2/2011
U/S.4(1)) OF THE LAND ACQUISTION ACT.
EXHIBIT P21. TRUE COPY OF THE JUDGMENT OF THIS
HONOURABLE COURT DATED 5/6/2012 IN WPC NO.22634/2011 AND
OTHER CONNECTED CASES.
EXHIBIT P22. TRUE COPY OF THE OBJECTION SUBMITTED BY
THE 1ST PETITIONER UNDER S.5A.
EXHIBIT P23. TRUE COPY OF THE OBJECTION SUBMITTED BY
THE 2ND PETITIONER UNDER S.5A.
EXHIBIT P24. TRUE COPY OF THE NOTICE FOR HEARING ON
10/7/2012 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P25.(2 IN NOS) TRUE COPY OF THE MARKS SUBMITTED
BY THE 8THE RESPONDENT TO THE OBJECTION SUBMITTED BY THE
PETITIONERS.
EXHIBIT P25. TRUE COPY OF THE REPORTS TO THE OBJECTION
PARPARED BY THE 5TH RESPONDENT.
EXHIBIT P27. TRUE COPY OF THE FORWARDING LETTER DATED
13/7/2012 OF THS 5TH RESPONDENT
EXHIBIT P28. TRUE COPY OF THE BRIEF HISTORY DATED
13/7/2012 PREPARED BY THE 3RD RESPONDENT.
EXHIBIT P29. TRUE COPY OF THE ORDER DATED 17/7/2012 OF
THE 2ND RESPONDENT.
EXHIBIT P30. TRUE COPY OF THE DECLARATION DATED
6/9/2012 UNDER THE SEC.6 OF THE LAND ACQUISTION ACT.
EXHIBIT P31. TRUE COPY OF THE INTERIM ORDER IN WPC
NO.17504/2011.
EXHIBIT P32. TRUE COPY OF THE LIST OF LAND VALUE OF THE
LAND UNDER ACQUSITION PREPARED IN TERMS OF FAIR VALUE
FIXED U/S.28A OF THE STAMP ACT.
EXT. P33 : A TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON
BEHALF OF THE 2ND RESPONDENT IN W.P.(C) NO. 17504 OF 2011
DATED 26.9.2011.
EXT. P34 : A TRUE COPY OF THE NOTIFICATION DATED
19.9.2006.
EXT. P35 : A TRUE COPY OF THE NEWS ITEM IN THE MALAYALA
MANORAMA DAILY DATED 14.9.2009.
EXT. P36 : A TRUE COPY OF THE PRE-FEASIBILITY REPORT.
EXT. P37. : TRUE COPY OF THE REPLY DATED 15.5.2013
GIVEN FROM THE OFFICE OF THE ASSISTANT EXECUTIVE
ENGINEER, PWD, PALA.
EXT. P38 : TRUE COPY OF W.P.(C) NO. 17248/2018 ON THE
FILES OF THIS HON'BLE COURT.
EXT. P39 : TRUE COPY OF THE PLAN OF PARALLEL ROAD
PREPADED BY THE PWD, PALA.
EXT.P40 : TRUE COPY OF THE TENDER NOTICE ISSUED BY THE
PWD, PALA.
EXT. P41 : TRUE COPY OF THE NOTICE UNDER S.9(1) OF THE
LAND ACQUISITION ACT.
RESPONDENTS' EXHIBITS
EXT. R3(a) : A TRUE COPY OF THE ROUGH SKETCH OF THE
PROJECT.
EXT. R5(b) SERIES : PHOTOGRAPHS.
EXT. R8(a) : TRUE COPY OF THE GOVERNMENT ORDER NO. GO
(Rt) 1879/12/PWD DATED 07.11.2012.
EXT. R8(b) : TRUE COPY OF THE NOC.
EXT. R8 ) : TRUE COPY OF THE LETTER DATED 22.7.2013 OF
THE SECRETARY, PALA MUNICIPALITY.
C.R.
- -W.P.(C)-Nos.-26928,-28509-&- -
-K. -
SURENDRA MOHAN, J.
- - - - - - - - -
29122 of 2012 & 21524 of 2013
- - - - - - - - - - - - - - - - - - -
Dated this the 28th day of June, 2017
JUDGMENT
These writ petitions challenge land acquisition proceedings initiated by the State under the Land Acquisition Act, 1894 (hereinafter referred to as the Act for short). The petitioners are all owners of properties that are the subject matter of acquisition. All the lands are sought to be acquired pursuant to a common notification under Section 4(1) of the Act. Since the contentions advanced are identical, these writ petitions are all considered together. W.P.(C) No. 26928 of 2012 is treated as the leading case. The parties as well as the documents produced are referred to in the manner in which they are described in the said petition. The acquisition in the present case is for the improvement of the Parallel Road from the Mini Civil Station to Pala-Kozha Road. Pala is a bustling up-country town that is fast developing into a busy township. WPC.26928/2012 & con.cases.
2The improvement of the road is intended to ease the traffic congestion, which is a common feature in Pala town. The short facts of the case are the following:
The Government of Kerala had as per Ext.P7 Government Order dated 14.8.2009 decided to take over a number of roads that were within the various Panchayats and Municipalities in the State, for the purpose of improving them as Major District Roads. The condition of the roads were deplorable and it is stated that the local authorities were not in a position to improve the said roads due to paucity of funds.
The intention of the Government was to provide a solution to the said problem by taking them over and having them improved through the Public Works Department. As per Ext.P7, roads having a total length of 7385 kms were taken over. The list of roads so taken over in Kottayam District is appended to Ext.P7. Serial No. 187 is the "Pala Parallel road from Mini Civil Station to Pala Kozha road". Thereafter, it appears that an administrative sanction for Rs.Two Crores was issued as per Ext.P8 on 19.8.2009 for undertaking the works WPC.26928/2012 & con.cases.3
of easing the gradient and widening the road and carriage way so as to facilitate two way traffic. Out of this, an amount of Rs.72 Lakhs was for acquisition of land and the balance amount for easing the gradient and widening the road.
Ext.P10 is the sketch showing the extent to which such gradient correction was required. Subsequently, it appears that as per Ext.P13 dated 3.8.2010 a revised administrative sanction was issued for the very same purpose. Thereafter on 14.12.2010 the Government issued an order granting permission to initiate land acquisition proceedings for the improvement and gradient correction of Pala-Kozha road and to take advance possession of the land sought to be acquired by invoking the urgency clause under Section 17(1) of the Act.
2. At this stage, the first petitioner along with some others are said to have submitted Ext.P15 representation to the Chief Engineer, PWD, objecting to the acquisition on the ground that a five storied building that belong to them would be lost in the acquisition. They followed up Ext.P15 with another representation to the Chief Minister, a copy of which WPC.26928/2012 & con.cases.
4is Ext.P16. Various other representations also appear to have been submitted. It is stated that, there was no reply to the above representations.
3. In the above circumstances, a notification dated 18.2.2011 was issued under Section 4(1) of the Act notifying the lands of the petitioners herein for acquisition. As per Ext.P19, the Commissioner of Land Revenue directed that the urgency clause under Section 17(1) be invoked, thereby dispensing with the enquiry under Section 5A of the Act. The proceedings were challenged by the petitioners as well as the other land owners in a batch of writ petitions before this Court. The writ petitions were admitted and an interim order of stay of dispossession of the petitioners was granted on 29.6.2011. Later on, the writ petitions were all disposed of by a common judgment dated 5.6.2012, evidenced herein by Ext.P21. As per Ext.P21, this Court set aside the action of the authorities in invoking the urgency clause, with the following direction:
WPC.26928/2012 & con.cases.5
"The Government shall conduct an enquiry under Section 5A of the Land Acquisition Act after affording an opportunity of being heard to the petitioners and pass appropriate orders, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Further acquisition proceedings pursuant to the Section 4 notification shall only be after completion of the enquiry under Section 5A."
4. Pursuant to Ext.P21 judgment, all the petitioners submitted their objections, copies of which are produced in these proceedings. Thereafter, the enquiry under Section 5A of the Act was conducted. However, by Ext.P29 order dated 17.7.2012, the Land Revenue Commissioner has rejected the objections of the petitioners. After the issuance of Ext.P29, Ext.P30 dated 6.9.2012, the declaration under Section 6 of the Act has also been issued. The challenge in all the writ petitions relate to the above proceedings.
5. According to the petitioners, the project itself has been undertaken without any proper study or consideration of the relevant factors that are necessary to be considered before taking a decision to expend public funds. It WPC.26928/2012 & con.cases.
6is contended that, the project, if implemented, would cause a lot of problems. Apart from the fact that the amount sanctioned for implementation of the project is grossly insufficient for the completion thereof, according to the petitioners, the gradient correction involved would result in the slicing down of two hills depriving the residents on both sides of the road, of their means of access to the road. It is further alleged that, a number of by-lanes that open into the parallel road would remain at a level substantially higher than the main road, frustrating the use of the said lanes. According to the petitioners, a careful planning could have avoided the inconveniences that would be caused to the residents of the locality by the implementation of the project in its present form. They also allege that, influential political leaders whose residences are by the side of the road have seen to it that the improvements contemplated are limited to a small portion of the road alone. It is the case of the petitioners that, the widening of the parallel road would not ease the traffic congestion in Pala town. The proposed alignment is also WPC.26928/2012 & con.cases.
7attacked as impractical and fraught with deficiencies. The administrative sanction granted and the funds available are not sufficient to meet the expenditure involved in implementing the project. The petitioners also contend that the enquiry conducted under Section 5A of the Act was only an eye-wash and that Ext.P29 does not evidence any consideration of their objections in a proper manner. Since the attempt of the authorities is to deprive the petitioners of their lands without following the mandatory procedures stipulated by law, the impugned proceedings require to be interfered with and set aside.
6. A counter affidavit has been filed refuting the contentions of the petitioners. Pala town is the centre of the Taluk Head Quarters of Meenachil. It is a heavily congested town especially during peak hours due to heavy traffic. The present project is intended to mitigate the traffic congestion in the town. According to the respondents, the parallel road itself was envisaged as a means of easing the traffic congestion in the town by providing a road connecting the WPC.26928/2012 & con.cases.
8State highway from Ettumanoor to Poonjar and the State highway from Punalur to Muvattupuzha. The road starts from Kizhathadiyoor to proceed west, passing in front of the Civil Station, to cross the Pala-Ramapuram Road, to proceed further west to meet the Pala-Kozha Road and to join the Ettumanoor-Poonjar road at Puliyannur (which is also known as Mariyan junction). A rough sketch of the project is Ext.R3(a). The proposal is to widen the road in three reaches. The first reach starts from Kizhathadiyoor to the Civil Station having an approximate length of 700 mtrs. The work in respect of the first reach was progressing without any complaints, at the time of filing the counter affidavit. The second reach is from the Civil Station up to the Pala-Kozha Road having a length of approximately 1490 mtrs. The dispute in these cases is in respect of the second reach mentioned above. The third reach starts from Kozha road to Puliyannur (Mariyan junction) having a length of 1500 mtrs. According to the respondents, the objections of the petitioners are on an erroneous impression that the project envisages WPC.26928/2012 & con.cases.
9widening of the parallel road only from the Civil Station up to the Kozha Road. The respondents state that the project envisages a facility to provide free access to the two State highways mentioned above by widening and improving the parallel road. The project was conceived of and is being implemented after a proper survey and finalization of the alignment by the competent authorities. It is further stated that, the State Public Works Department is competent to undertake such major projects and in consultation with agencies like Natpac and Rites. According to the counter affidavit, sufficient funds are available for the implementation of the project. The objections raised by the petitioners have been properly considered at the enquiry conducted under Section 5A of the Act and have been rejected. According to the counter affidavit, pursuant to the direction issued by this Court, hearings were conducted, which lasted 314 hours. Therefore, according to the respondents, the petitioners are not entitled to any of the reliefs sought for in these writ petitions. As per an additional affidavit dated 16.6.2015, Ext. WPC.26928/2012 & con.cases.
10R5(b) series photographs have been produced in support of the contention that, the widening of the road has been completed to a substantial extent, without giving cause for complaints from any quarter leaving out the lands of the petitioners alone, at various places where the road still remains narrow. Therefore, according to the respondents, these writ petitions are liable to be dismissed.
7. According to Adv.Mathew John, who appears for the petitioners in three of the writ petitions, administrative sanction has been granted by the Government only to develop a portion of the road from Mini Civil Station to Pala-Kozha Road. Widening of only a portion of the road would result in more traffic congestion since the other portions would continue to remain narrow. The amount for which administrative sanction has been granted is inadequate to complete the project that is envisaged. The fact that a revised administrative sanction had to be issued evidences the lack of planning in conceiving the project. It is contended that, the gradient correction that is proposed would necessitate slicing WPC.26928/2012 & con.cases.
11down of two hills depriving the residents on the sides of the road, the means of access from their houses, apart from rendering the numerous by-lanes that open to the road useless. The authorities have not bestowed their attention to the above practical issues that require to be solved before a project of the present magnitude was implemented. It is also contended that the gradient correction exceeds the limits permitted by the Indian Roads Congress. Therefore, according to the learned counsel, the alignment of the road ought to have been altered.
8. The learned counsel has a further contention that though elaborate objections have been raised at the enquiry conducted under Section 5A of the Act, none of the objections have been considered by the authorities in the proper perspective. For the above reason, it is contended that, the authorities have only made a show of conducting the enquiry under Section 5A. The impugned order of the Land Revenue Commissioner, Ext.P29, does not reflect a consideration of the objections of the petitioners. According to WPC.26928/2012 & con.cases.
12the learned counsel, each objection should have been separately considered and reasons for not accepting the objection ought to have been stated. Apart from the above, it is pointed out that, reports were called for from the various authorities of the PWD and others, without putting the petitioners on notice regarding the contents thereof. Such reports have also been relied upon. Therefore, it is contended that, the procedure of obtaining reports behind the back of the petitioners being in violation of the principles of natural justice, has vitiated the entire proceedings. A perusal of Ext.P29 would show that the authority has simply accepted the reports that were produced. The refusal to consider the objections, according to the counsel, defeats the very purpose of the enquiry under Section 5A. Apart from the above, according to the learned counsel, the declaration under Section 6 that has been issued, is null and void, by reason of delay. The notification under Section 4(1) of the Act was issued on 18.2.2011 which was published in the Deepika daily on 5.4.2011. Therefore, it is contended that the declaration WPC.26928/2012 & con.cases.
13under Section 6 of the Act had to be made on or before 17.2.2012. The declaration in these cases was issued only on 6.9.2012.
9. Adv. P.C. Haridas, who appears for the petitioners in W.P.(C) No. 28509 of 2012, has also put forward similar contentions supporting the counsel for the petitioners in the other writ petitions.
10. The Senior Government Pleader, who appears for the respondents, refutes the contentions of the learned counsel for the petitioners by pointing out that the counsel for the petitioners was still under an erroneous impression that only a small reach of the parallel road was sought to be improved and widened. Because of the financial constraints faced by the Government, the proposal has been to undertake the widening of the road in three separate reaches. According to the counsel, the first reach is already over. With respect to the second reach, except for the portions where dispossession of the lands owned by the petitioners are remaining stayed, the work has been completed. Work of the third reach also is WPC.26928/2012 & con.cases.
14remaining completed. There have been no complaints from any of the land owners with respect to the implementation of the project. The project is beneficial to all concerned and is absolutely necessary as a solution for the traffic congestion in Pala town. My attention is drawn to Ext.R5(b) photographs to point out that the road has been made into a convenient one having multiple lanes. Refuting the allegation that there was no proper planning, it is contended that a proper survey and consideration of the alignment that was proposed, had been conducted. The PWD has its own Engineers, who are competent to undertake the work of designing and implementing such projects, without the assistance of agencies like Natpac, Rites etc. According to the learned Senior Government Pleader, sufficient finance is available for the implementation of the project. With respect to the objection regarding the work of gradient correction, it is pointed out that, the project has been designed in a manner causing the least adverse impact on the environment as well as the local residents. It is for the said reason that, there has WPC.26928/2012 & con.cases.
15been no complaints from any of the residents in the locality except the petitioners. The reason for revising the administrative sanction is mentioned in the order Ext.P13 itself. Such revision was done, since additional width was required for which geometrical correction by undertaking filling up operations became necessary. According to the learned Government Pleader, the objections of the petitioners have already been properly considered and rejected as per the impugned order. The objections have been rejected for valid reasons and therefore, there are no grounds to interfere with the same.
11. With respect to delay, according to the Senior Government Pleader, the date of publication of the notification under Section 4(1) was 5.4.2011. Section 6 declaration was published on 6.9.2012. When the period during which the interim order of stay of this Court was in force, is excluded, it is contended that there has been no delay as alleged. According to the learned Senior Government Pleader, as per Ext.R8(a) dated 7.11.2012 Government had sanctioned Rs.19 WPC.26928/2012 & con.cases.
16Crores for the project, which amount is sufficient for implementing the same. The learned Senior Government Pleader has a further contention that, the building of the petitioners in this case which is located at a junction is a construction made in violation of the Building Rules and is therefore liable to be demolished. He therefore seeks dismissal of the writ petitions.
12. Heard. The first contention that is put forward on behalf of the petitioners is that the alignment of the proposed project is impractical and requires to be corrected by making suitable changes thereto. According to the petitioners, the gradients are too steep and correction thereof would necessitate slicing down two hills that would render the residents on either side of the road with no means of access to their houses and would also render the numerous by-lanes that open on to the road, useless. The petitioners in W.P.(C) No. 26928 of 2012 have a further contention that, if the land is acquired from the opposite side, the building owned by them could be saved. It is necessary to bear in mind the fact WPC.26928/2012 & con.cases.
17that, finalization of the alignment of the road is the work of persons who have technical expertise to undertake the same. This Court is ill-equipped to undertake an enquiry into the said aspects to determine either the correctness or the practicability of such technical decision. According to the respondents, the Engineers of the PWD had undertaken a survey and proper study of the topography and have finalized the alignment in a manner causing least damage to the environment. There is nothing on record to warrant a conclusion that, there is any infirmity in the said decision. In the decision in Union of India v. Kushala Shetty ((2011) 12 SCC 69), the Apex Court has in similar circumstances rejected a contention against fixation of alignment of a road, holding that it is not possible for the courts to make a roving enquiry to fish out some material and draw a conclusion that the decision and actions of the authorities were tainted with mala fides. In paragraph 28 thereof, the Apex Court has held as follows:
WPC.26928/2012 & con.cases.18
"The courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited."
In the present case also, absolutely no materials are available to support the contention of the petitioners that the alignment fixed by the authorities was defective in any manner. Apart from the above, Annexure R5(b) photographs produced along with the additional affidavit of the 5th respondent dated 16.6.2015 show that the proposed road has been laid out and completed, except for the portions where the lands owned by the petitioners could not be utilized in view of the interim order of stay granted by this Court. In view of the above, the objections raised against the alignment fixed by the authorities are rejected.
13. The 2nd contention that is put forward relates to the inadequacy of the enquiry under Section 5A of the Act. The contention is that every objection that was put forward by the petitioners ought to have been considered and the reasons WPC.26928/2012 & con.cases.
19for rejecting each one of them ought to have found a place in the impugned order passed by the Land Revenue Commissioner. Copies of the objections submitted by the petitioners are produced in these proceedings. The objections as well as the writ petitions have set out in detail the various objections that were put forward. The question therefore is whether the impugned order Ext.P29 has considered the objections of the petitioners properly or not. In the above context, it is necessary to understand what is the nature of the consideration that is required as per law in an enquiry under Section 5A of the Act. Section 5A is extracted hereunder for convenience of reference.
"5A. Hearing of objections.- (1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under sub-section (1) shall be made to the Collector in writing and the Collector shall WPC.26928/2012 & con.cases.20
give the objector an opportunity of being heard either in person or by any person authorised by him in this behalf or by counsel and shall, after hearing all such objections and after making such further enquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under sub- section (1) of Section 4 or make different reports in respect of different parcels of such land, -
(i) to the Government where the notification under sub-section (1) of Section 4 was published by the Government;
(ii) to the Board of Revenue, where the notification under sub-section (1) of Section 4 was published by the Board of Revenue or by himself containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of the Government or the Board of Revenue, as the case may be. The decision of the Government or the Board of Revenue, as the case may be, shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act." (emphasis supplied) The above provision confers a very valuable right on the owner WPC.26928/2012 & con.cases.21
of the land that is sought to be acquired, to put forward his objections to the acquisition of his land. It is the duty of the Collector to whom such objections are submitted, to give the objector an opportunity of being heard. After hearing all such objections "and after making such further enquiry, if any, as he thinks necessary," he has to make a report either to the Government or to the Board of Revenue as the case may be. The scope of the enquiry that is contemplated by Section 5A of the Act has been explained by the Apex Court as well as by this Court in a number of decisions. In Scindia Employees' Union v. State of Maharashtra ((1996) 10 SCC 150), the Apex Court while negativing a contention put forward by an Employees' Union that they were also entitled to be heard under Section 5A of the Act, held as follows in paragraph 2 thereof:
"2. The only scope of the enquiry under Section 5- A is whether the land sought to be acquired is needed for a public purpose and whether the land is suitable for the purpose or is an arable land. Besides these questions, the inter se claim of the employer and the workmen of WPC.26928/2012 & con.cases.22
payment of wages and extent thereof are alien to the enquiry. Sub-section (3) of Section 5A makes the scope beyond pale of doubt. If the interested person is entitled to compensation or by implication bound by award of compensation or excess compensation, he is an interested person. Therefore, the petitioners cannot claim to be persons interested for the purpose of an enquiry under Section 5-A."
In Radhy Shyam v. State of U.P. ((2011) 5 SCC 553), the Apex Court has held that, Section 5A embodies the rule of audi alteram partem that can be by-passed only in exceptional circumstances where even a delay of a few weeks would frustrate the public purpose for which the acquisition is contemplated.
14. In Raghbir Singh Sehrawat v. State of Haryana ((2012) 1 SCC 792) the Apex Court has reiterated the above aspect in paragraphs 39 and 40 as follows:
"39. In this context, it is necessary to remember that the rules of natural justice have been ingrained in the scheme of Section 5-A with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to WPC.26928/2012 & con.cases.23
oppose the decision of the State Government and /or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. He can also point out that the land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilized for execution of the particular project or scheme.
40. Though it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons."
WPC.26928/2012 & con.cases.
24
15. What emerges from the above dicta is that, the duty of the Collector is to give a fair opportunity of hearing to the objector and consider his objections against acquisition of his land. Thereafter, he has to make a recommendation supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance.
16. The above position has been again reiterated by the Supreme Court in Surinder Singh Brar v. Union of India ((2013) 1 SCC 403). Paragraph 76 of the said judgment reads as follows:
"76. Section 5-A, which embodies the most important dimension of the rules of natural justice, lays down that any person interested in any land notified under Section 4(1) may, within 30 days of publication of the notification, submit objection in writing against the proposed acquisition of land or of any land in the locality to the Collector. The Collector is required to give the objector an opportunity of being heard either in person or by any person authorized by him or by pleader. After hearing the objector(s) and making such further inquiry, as he may think necessary, the Collector has to make a WPC.26928/2012 & con.cases.25
report in respect of land notified under Section 4(1) with his recommendations on the objections and forward the same to the Government along with the record of the proceedings held by him. The Collector can make different reports in respect of different parcels of land proposed to be acquired."
17. In the present case, though the enquiry under Section 5A of the Act was dispensed with initially by invoking the power under Section 17(4) of the Act, pursuant to the direction issued by this Court in Ext.P21 judgment, the enquiry was conducted. Though it is contended that, all the objectors were called into a room together and no opportunity of being heard was given, according to the counter affidavit filed, the hearing that was conducted had lasted for more than 314 hours. Anyhow, the fact remains that, the petitioners had been called for a hearing, that they had attended the same and that, after hearing them, a report as stipulated by Section 5A had been submitted to the Land Revenue Commissioner who has passed Ext.P29. Therefore, it cannot be said that a fair chance to put forward their contentions had not been given to WPC.26928/2012 & con.cases.
26the petitioners. It is no doubt true that, their objections have not found favour with the authorities. But they have, no doubt, been given an opportunity of being heard. Therefore, the contention that they had not been heard as required by Section 5A of the Act has to fail.
18. A further contention is put forward that after the hearing was over, the 5th respondent had received written remarks from the 8th respondent which is evidenced herein by Ext.P25. The objection is that such remarks on the objections of the petitioners ought to have been put to them and their response ought to have been obtained before relying on them. The procedure of obtaining reports behind the back of the petitioners has, vitiated the entire proceedings, it is contended. The said contention cannot be countenanced for the reason that, as per Section 5A the Collector has to make the report, "after hearing all such objections and after making such further enquiry, if any, as he thinks necessary." Therefore, the statutory provision itself entitles the 5th respondent to make a further enquiry after the hearing was WPC.26928/2012 & con.cases.
27over. In view of the above statutory permission, I do not find any infirmity in the procedure adopted by the 5th respondent in calling for remarks of the 8th respondent.
19. The next contention is that, the impugned order Ext.P29 ought to have considered the objections independently and given reasons for rejection of each of the objections.
20. It is settled proposition of law that Section 5A of the Act is in two parts. The first part deals with the duty of the Collector who has to receive the objections, hear the objectors, make any further enquiry that he may consider necessary and thereafter to submit a report to the Government in respect of the land which is the subject matter of acquisition. He is also required to forward the records of the proceedings held by him, along with his report. The decision to be taken by the Government is to be on the basis of the said record. What is required to be considered is whether the impugned order Ext.P29 has considered the objections of the petitioners, in the light of the report of the 5th respondent. It WPC.26928/2012 & con.cases.
28is worth noticing that, Ext.P29 has taken note of the fact that the petitioners had been heard as part of the enquiry under Section 5A of the Act. The objections have been set out in Ext.P29. The authority has taken note of the fact that, going by the reports, the PWD had conducted a scientific study before finalizing the alignment of the road. The project envisages the construction of by-lanes for the navigation of the residents of the area. The project does not adversely affect the environment. Rehabilitation of the persons who are likely to be dispossessed by the acquisition as well as provision for compensation have been made. Provision for relaxing the requirement of the Building Rules to persons whose properties have been acquired has also been made, as per the proceedings. It has further been noticed that, the project would mitigate the traffic problems of Pala town and would reduce road accidents. The impugned order goes on to take note of the other reports submitted to him. The order concludes by saying that the authority had satisfied itself of the genuineness of the reports and the correctness of the WPC.26928/2012 & con.cases.
29explanation offered by the authorities. On the basis of the conclusions arrived at by it, the authority has rejected the objections of the petitioners. A reading of the impugned order certainly shows that the authority has applied its mind to the objections raised by the petitioners, in the light of the reports submitted by the Land Acquisition Officer as well as the other authorities. He has arrived at a conclusion that the objections were without substance and were liable to be rejected. Accordingly, he has rejected the same. Though it is true that the order lacks the precision and the incisive analysis of a judicial order, it cannot be said that the same is vitiated by a total non-application of the mind. A reading of the order shows that the authority has referred to all the relevant aspects of the matter as well as the objections raised. It is true that, each objection has not been independently considered and rejected separately giving reasons for such rejection. Such niceties cannot be expected of an administrative order issued by persons who are not trained in law. Therefore, it is held that there is no infirmity affecting WPC.26928/2012 & con.cases.
30the validity of Ext.P29 as contended by the petitioners.
21. Another contention that is put forward vehemently by the counsel for the petitioners is that, the entire proceedings have become barred under Section 6 of the Act by reason of delay. According to the counsel, the notification under Section 4(1) of the Act was published in the Deepika daily on 5.4.2011. The declaration under Section 6 is dated 6.9.2012. The time limit for issuing the declaration under Section 6 being one year, it is contended that, the declaration in this case having been issued only after 5.4.2012 is hit by the proviso to Section 6. Though there was an interim order of this court in force, evidenced herein by Ext.P31, according to the learned counsel, the interim order was limited only to a stay of dispossession of the petitioners. In other words, there was no impediment in proceeding with all the other legal requirements for completing the acquisition proceedings. Therefore, the omission to issue the declaration under Section 6 within the time limit stipulated by Section 6 of the Act is fatal, it is contended. The counsel also places WPC.26928/2012 & con.cases.
31reliance on the decision of a learned Single Judge of this Court in Pathrose v. State of Kerala (1988 (1) K.L.T. 786) in support of the above contention of his. Reliance is also placed on a Division Bench decision of this Court in Anitha Jose v. State of Kerala (2011(3) K.L.T. 538).
22. The learned Senior Government Pleader on the other hand points out that Section 4(1) notification in the present case though dated 18.2.2011 and published initially in the Deepika daily dated 5.4.2011, was published on the notice board of Meenachil Taluk Office only on 25.4.2011. For the purpose of computation of limitation, it is contended that, it is the date of last publication that should be taken into account. On 29.6.2011 as per Ext.P31 interim order this Court had directed that the petitioners shall not be dispossessed. The said interim order continued to be in force until 5.6.2012 on which date the petition was finally disposed of by Ext. P21 judgment. The declaration under Section 6 of the Act was published on 6.9.2012 after the enquiry under Section 5A of the Act was completed. According to the learned Senior WPC.26928/2012 & con.cases.
32Government Pleader, the period from 29.6.2011 to 5.6.2012 during which the interim order of stay of this Court was in operation ought to be excluded while computing the period of limitation. When the said period is excluded, it is pointed out that, the declaration under Section 6 was made within the statutory time limit. Therefore, according to him, the contention of the counsel for the petitioners is only to be rejected. The learned Senior Government Pleader also places reliance on the decision of the Apex Court in Sangappa Gurulingappa Sajjan v. State of Karnataka ((1994) 4 SCC 145) and State of Kerala v. Antony Fernandez ((1998) 3 SCC 556).
23. It is not in dispute that, the notification under section 4(1) of the Act is dated 8.2.2011 and was published in the Deepika daily on 5.4.2011. The notification was the subject matter of challenge before this Court in a number of writ petitions filed by the petitioners. As per Ext.P31, interim order dated 29.6.2011 this Court had granted a stay of dispossession of the petitioners. The order continued to be in force till 5.6.2012 on which date the writ petitions were WPC.26928/2012 & con.cases.
33disposed of by Ext.P21 judgment. As per the judgment, this Court set aside the action of the State in invoking the urgency clause under Section 17(4) of the Act and directed that further proceedings shall be continued only after conducting an enquiry under Section 5A of the Act. The declaration under Section 6 was made on 6.9.2012. The question that arises therefore is whether an interim stay of dispossession alone would entitle the State to exclude the period of operation of the interim order while computing the period of limitation.
24. It is true that, a learned Single Judge of this Court in Pathrose v. State of Kerala (1988 (1) K.L.T. 786) (supra) has taken the view that an interdiction against taking possession alone, cannot be considered to have held up all the stages leading up to the declaration under Section 6(1) after issue of the Section 4(1) notification.
25. In Anitha Jose v. State of Kerala (2011(3) K.L.T.
538) (supra), the above question had not arisen for consideration before the Division Bench. What was involved in the said case was whether the State was entitled to exclude the WPC.26928/2012 & con.cases.
34period during which it had pursued a Special Leave Petition before the Supreme Court, despite invoking the urgency clause under Section 17. This Court has in the facts of the said case, held as follows:
"26. The question in so far as the instant appeals are concerned is not whether the impediment for the land acquisition proceedings is at the instance of the owner of the land or some other interested party or the State. The question to our mind is whether there was an interim order precluding the passing of an award or taking of any other steps pursuant to S.6 of the Act in so far as the property of the appellants in these two appeals are concerned. Admittedly, neither of the appellants was a party to anyone of the writ petition which came to be filed in this court challenging Exts.P1 and P2 notifications. Various other persons approached this court and when this Court granted stay of the further proceedings and in such cases, legally and logically it ought to be construed only as a stay operating in so far as the properties in which the petitioners before this Court were interested.
27. Civil Appeal Nos.2824 and 2833 of 2005 were preferred by the State of Kerala aggrieved by a decision of this court in O.P. No. 7790 of 2003. The appellants herein were neither parties to the above mentioned WPC.26928/2012 & con.cases.
35
Original Petition nor parties to either of the above mentioned Civil appeals before the Supreme Court.
28. In the circumstances, in our opinion, any interim order passed in the above mentioned proceedings would only be confined to the properties belonging to the parties in the litigation but not to the third parties to the above proceedings like the appellants herein. However, we hastened to add that nothing restricts the jurisdiction of either this Court or the Supreme Court to stay the acquisition proceedings, not only on all the properties belonging to the parties before the Court but, in an appropriate case other properties also, such as the one covered by common notifications etc. However, it is not demonstrated before us that any such order was passed in the instant case. In the circumstances, in our opinion, the benefit of the Explanation under S.11-A, in so far as it pertains to the time consumed by the State in pursuing the above mentioned two appeals before the Supreme Court, is not available to the State of Kerala."
Therefore, the question as to whether a stay of dispossession alone of the petitioners could be construed as an interim order entitling the State to exclude the period of operation thereof while computing the limitation under Section 6, had not arisen WPC.26928/2012 & con.cases.
36for consideration in the said case.
26. In Sangappa Gurulingappa Sajjan v. State of Karnataka ((1994) 4 SCC 145), the issue has been considered by the Apex Court in the following words:
"2. ...... Explanation 1 thereto provides the method or mode of computation of the period referred to in the first proviso, namely, the period during which "any action or proceeding" be taken in pursuance of the notification issued under sub-section (1) of Section 4 being "stayed by an order of a court shall be excluded".
In other words, the period occupied by the order of stay made by a court shall be excluded. Admittedly, pending writ petition on both the occasions the High Court granted "stay of dispossession". Admittedly, the validity or tenability of the notification issued and published under Section 4(1) is subject of adjudication before the High Court. Till the writ petitions are disposed of or the appeals following its heels, the stay of dispossession was in operation. Though there is no specific direction prohibiting the publication of the declaration under Section 6, no useful purpose would be served by publishing Section 6(1) declaration pending adjudication of the legality of Section 4(1) notification. If any action is taken to pre-empt the proceedings, it would be stigmatised either as "undue haste" or action to WPC.26928/2012 & con.cases.
37
"overreach the court's judicial process". Therefore, the period during which the order of dispossession granted by the High Court operated, should be excluded in computation of the period of three years covered by clause (1) of the first proviso to the Land Acquisition Act."
The above dictum has been considered by the Apex Court in State of Kerala v. Antony Fernandez ((1998) 3 SCC 556). The position has been reiterated in paragraph 7 of the said judgment in the following words:
"7. ....Explanation 1 to Section 6 is couched in very wide terms. It states that the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4(1) is stayed by an order of a court that period is to be excluded. It is not disputed that the proceedings under Section 5-A is also pursuant to Section 4(1) notification. Secondly the direction of the Court is that possession should not be taken till enquiry under Section 5-A is held and objections are considered which would amount to stay of further proceedings pursuant to Section 4 notification after Section 5-A enquiry. It was obviously an order of the competent court. It has been held by this Court vide Sangappa Gurulingappa Sajjan v. State of Karnataka;
WPC.26928/2012 & con.cases.38
Govt. of T.N. v. Vasantha Bai and Venkataswamappa v. Special Dy. Commr. (Revenue) that even stay of dispossession granted by the Court while considering challenge to Section 4(1) notification would amount to stay as contemplated by Explanation 1 to Section 6. Consequently, it has to be held that the period during which there was stay of dispossession, i.e., from 2.7.1993 to 18.1.1994 amounting to almost 6 months is to be excluded and consequently, issuance of Section 6 notification on 20.5.1994 cannot be said to be beyond the permissible period as per Explanation 1 to Section
6."
27. The position that emerges from the above dicta is that, the period during which dispossession of the petitioners was stayed by this Court is liable to be excluded while computing limitation under Section 6 of the Act. In the above case, as already noticed above, Section 4(1) notification was published on 5.4.2011. The interim order of this Court was passed on 29.6.2011. The same was in force till 5.6.2012, the date of Ext.P21 judgment. The declaration under Section 6 is dated 6.9.2012. When the period from 29.6.2011 to 5.6.2012 is excluded, the declaration under WPC.26928/2012 & con.cases.
39Section 6 is well within the period of one year stipulated by the Statute. In view of the above, the contention on the ground of limitation is rejected.
28. The learned Senior Government Pleader has placed reliance on the decision of a learned Single Judge of this Court in L. Sivanandan v. Greater Cochin Development Authority (AIR 1997 Kerala 209) to contend that this Court had in the said case sustained the invocation of the urgency clause in a situation where construction of a road for the purpose of avoiding traffic congestion with the active co-operation of the citizens, was being held up because the property of the petitioner was not acquired. It is pointed out that a similar situation exists in the present case where the entire project is remaining complete except for the portions where the properties of the petitioners are involved. Reliance is placed on an unreported judgment of this Court to which I was also a party where the decision to construct a fly over was under
challenge. The challenge has been negatived inter alia on the ground that its construction had reached an advanced stage WPC.26928/2012 & con.cases.40
with most of the acquisitions remaining complete.
29. In the present case, I have already found that the objections put forward by the petitioners are unjustified and that there is no infirmity in the proceedings warranting an interference therewith. The project is also remaining complete, to a large extent, as evident from Ext.R5(b) photographs to which reference has already been made by me, above. The State and the technically competent persons are the best judges of the needs of the public. The need to ease traffic congestion is a public purpose. It is for the experts to decide as to how and in what manner a solution to mitigate the traffic congestion should be worked out. In these cases, the experts have taken a decision and, there is no material or evidence on record to find that there is any infirmity in the decision of the authorities. Therefore, the alternative proposals put forward by the petitioners or an omission to consider them cannot be a ground to interfere with the land acquisition proceedings in these cases. The project is also remaining more or less complete, with the acquisition WPC.26928/2012 & con.cases.
41proceedings in respect of the other land owners having been completed. In such circumstances, the private interests of the land owners would have to yield to the public interest involved in seeing that the project is completed without further delay, considering the further fact that substantial public funds have already been expended for the project. The project has been remaining stalled for many years in view of the pendency of these proceedings. Therefore, it is only appropriate that the project is completed at the earliest.
For the foregoing reasons, these writ petitions fail, they are accordingly dismissed. No costs.
Sd/-
K. SURENDRA MOHAN JUDGE sb