IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 WP(C).No. 27212 of 2008(M) -------------------------- PETITIONER(S): --------------- ACHAMMA MATHAI, ROY VILLA, PATTAMKADAVU, CHERUVALLOOR MURI, CHERIYANAD VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SURYA SASI SRI.A.R.DILEEP RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT IN THE DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER, LAND REVENUE, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, ALAPPUZHA. 4. TAHSILDAR, TALUK OFFICE, CHENGANNUR. 5. CHERIYANAD GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, CHERIYANAD GRAMA PANCHAYATH, CHERIYANAD, CHENGANNUR TALUK, ALAPPUZHA-689 511. 6. P.K. VASUDEVAN, PRESIDENT, CHERIYANAD GRAMA PANCHAYTH, RESIDING AT VARIKKOLIL, THURUTHIMEL, NEDUVARAKKODE.P.O, CHERIYANAD. 7. SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL), ALAPPUZHA. ADV. SRI.K.M.SATHYANATHA MENON FOR R5-6 GOVT. PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No.27212 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of October , 2008 JUDGMENT In this writ petition under Article 226, the petitioner challenges the proceedings initiated at the instance of the 5th respondent Panchayath for acquisition of her properties for the establishment of a Children's Park. According to the petitioner, she has got 3 Ares of land in Survey No. 396/7 and 396/6 of Cheriyanand village within her registered holding. Apart from that she has got a further extent of 3.8 Ares of adjoining property which is the subject matter of an ongoing litigation between her and the Panchayat presently pending before this court in R.S.A.No. 1098/05. The very proposal to acquire the petitioner's property including the registered holding was mooted by the 6th respondent President of the Panchayat and the other functionaries of the 5th respondent Panchayat so that they can in the process defeat the petitioner's claims over the property which is the subject matter of the second appeal. 2. On various grounds, the petitioner seeks the following WPC.No.27212/08 2 reliefs: 1. Issue a writ in the nature of certiorari, or any other appropriate writ, direction or order calling for the records leading to Ext.P8 order of the second respondent and quash the same or to declare the same as void; 2. Issue a writ in the nature of certiorari or other appropriate writ , direction or order calling for the records leading to Ext.P11, P18 notifications and Ext.P19 declaration and quash the same or to declare the same as void; 3. Issue a writ in the nature of certiorari, or any other appropriate writ, direction or order calling for the records leading to Ext.P16 and quash the same; 4. To declare that the petitioner is not liable to be dispossessed from property comprised in Survey No. 398/1 of Cheriyanad village otherwise that through due process of law. 5. Declare that the Land Acquisition (Kerala Amendment ) Act 1985 is inoperative and void; 3. The Panchayat has not filed any counter affidavit. But the WPC.No.27212/08 3 learned Government Pleader would submit that the essential grievance of the petitioner seems to be that the emergency provisions under section 17(4) have been invoked and the enquiry under section 5A has been dispensed with. According to the learned Government Pleader, the petitioner is yet to challenge the order of the Land Revenue Commissioner by which sanction was accorded for dispensing with the enquiry under Section 5A. That order according to the learned Government Pleader will disclose application of mind by the Land Revenue Commissioner as to the question whether real urgency existed in this case. 4. On hearing Sri.George Varghese Perumpallikuttiyil, learned counsel for the petitioner and Sri.K.M.Sathyanatha Menon, learned standing counsel for the Panchayat initially, I directed the learned counsel for the Panchayat to inform as to what is the total extent of land which will be necessary for establishing the Park and as to whether anybody else's property is proposed to be acquired for the purpose. 5. Sri.Sathyanatha Menon submitted today that the proposed WPC.No.27212/08 4 Children's park will have an extent of 20 cents. Acquisition of 3 Ares of land belonging to the petitioner's alone will be necessary since the balance extent is already available at the disposal of the Panchayat. According to Sri.Menon, if necessary there are other Panchayat lands which can be utilised for expansion of the Park. 6. Sri.George Varghese, learned counsel for the petitioner would fairly concede that the second appeal was decided by this court yesterday against the petitioner and therefore it can be said that the petitioner's claims in respect of the land extending to 3.8 Ares, subject matter of the second appeal, are no longer available to him. Sri.George Varghese submitted drawing my attention to the various documents placed on record in this case that these very documents will show that the case of extreme urgency projected by the Panchayat does not exist. After all the purpose is establishment of a Children's Park. Such a purpose by its very nature can wait for one or two months so that an enquiry under Section 5A conducted. The submissions of Sri.George regarding the illegality of dispensing with enquiry under Section 5A cannot be said to be without any appeal. But I find that the petitioner is WPC.No.27212/08 5 yet to produce the order of the Land Revenue Commissioner according sanction for invocation of Section 17(4) and dispensation of enquiry under Section 5A. Without producing that order and challenging that order specifically, it is idle for the petitioner to argue that the order was passed without any application of mind. More over, it is seen that declaration under Section 6 has been passed. True, declaration under Section 6 has been passed during the pendency of this writ petition and it should be assumed to be subject to this writ petition. But I find that though absolute stay was sought for by the petitioner, this court did not become inclined to grant absolute stay sought for, noticing the circumstance that declaration had already been passed and in terms of section 6, the declaration is conclusive regarding public purpose behind the acquisition. No materials have been produced by the petitioner to establish that the proposal is actuated by oblique motives. Establishment of a Children's Park which will cater to the children ( and their parents) of the panchayat should be presumed to be for a public purpose. Writ petition will stand dismissed. However, it is made clear that WPC.No.27212/08 6 if the Panchayat does not establish the Children's Park and commission the same, before the 31-12-2009, the petitioner will be at liberty to seek a re-conveyance of her acquired property extending to 3 Ares. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.27212/08 7