IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 WP(C).No. 36880 of 2007(M) -------------------------- PETITIONER: ------------ M/S. NARMADA DESIGN CENTRE PVT.LTD., A BODY CORPORATE CONSTITUTED AND FUNCTIONING UNDER THE COPANIES ACT,HAVING ITS REGD.OFF. AT KAUDIAR, TVPM-3,AND REP.IN THIS PROCEEDINGS BY ITS M.D. DR.K.BALARAMAN,S/O.LATE DR.C.O.KARUNAKARAN, AGED 81YRS, R/AT "VALSA",KUMARAPURAM, M.C.P.O., TVPM-11. WHO IS DULY AUTHORISED AND EMPOWERED TO REPRESENT THE PETITIONER. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SMT.KVP.JAYALEKSHMY SRI.M.AJAY (IRUMPANAM) RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL), MARAKKADA ROAD, CHALAI, THIRUVANANTHAPURAM. 4. CHAIRMAN, TRIVANDRUM DEVELOPMENT AUTHORITY, VAZHUTHACAUD, THIRUVANANTHAPURAM. W.P.C.NO.36880/07 5. TRIVANDRUM DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.K.A.JALEEL, SC., TRIDA FOR R4 & 5 SRI.THOUFEEN AHAMED FOR ADV.COMMISSIONR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.36880/07 PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE SALE DEED NO.799/79 DATED 6-3-79 OF THE SRO, SASTHAMANGALAM EXT.P2 TRUE COPY OF THE SALE DEED NO.800/79 DATED 6-3-79 OF THE SRO, SASTHAMANGALAM EXT.P3 TRUE COPY OF THE SALE DEED NO.1160/79 DATED 13-3-79 OF THE SRO, SASTHAMANGALAM EXT.P4 TRUE COPY OF THE SALE DEED NO.3605/79 DATED 18-10-79 OF THE SRO, SASTHAMANGALAM EXT.P5 TRUE COPY OF THE SALE DEED NO.3606/79 DATED 18-10-79 OF THE SRO, SASTHAMANGALAM EXT.P6 TRUE COPY OF THE SALE DEED NO.3607/79 DATED 18-10-79 OF THE SRO, SASTHAMANGALAM EXT.P7 TRUE COPY OF THE TAX RECEIPT INDICATING PAYMENT OF TAX IN RESPECT OF THE PROPERTIES. EXT.P8 TRUE COPY OF THE LOCATION SKETCH SHOWING THE PROPERTY OF THE PETITIONER. EXT.P9 TRUE COPY OF THE NOTIFICATION NO.A1.1443/2903 DATED 28-4-07 EXT.P10 TRUE COPY OF THE REPRESENTATION DATED 18-7-07 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT. EXT.P11 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT EVIDENCING RECEIPT OF EXT.P10 REPRESENTATION EXT.P12 TRUE COPY OF THE REPRESENTATION DATED 17-8-07 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 1 AND 2 EXT.P13 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT EVIDENCING RECEIPT OF EXT.P12 OF THE FIRST RESPONDE NT EXT.P14 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT EVIDENCING RECEIPT OF EXT.P12 OF THE SECOND RESPONDENT. EXT.P15 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 4 AND 5 EXT.P16 TRUE COPY OF THE LETTER DATED 18-01-2007 ISSUED BY THE FIFTH RESPONDENT. EXT.P17 TRUE COPY OF THE NOTICE ISSUED TO SMT.AJITHA KUMARI NEIGHBOURING PROPERTY OWNER. EXT.P18 TRUE COPY OF THE EXTRACTS OF THE MINUTES OF MEETING OF THE BOARD OF DIRECTORS OF THE PETITIONER COMPANY EXT.P19 TRUE COPY OF THE APPEAL MEMORANDUM SUBMITTED BY THE PETITIONER BEFORE THE SURVEY AUTHORITIES EXT.P20 TRUE COPY OF THE CERTIFICATE NO.2843/1976 OF INCORPORATION OF M/S. NARMADA BUILDING ENTERPRISES (P)LTD. EXT.P21 TRUE COPY OF THE CERTIFICATION OF INCORPORATION OF M/S NARMADA DESIGN CENTRE (P)LTD. EXT.P22 TRUE COPY OF THE CERTIFICATE ISSUED BY THE PETITIONER BEARING DATED 5-4-08 EXT.P23 TRUE COPY OF THE PHOTOGRAPHS TAKEN ON 6-4-08 IN RESPECT OF THE PETITIONERS BUSINESS PREMISES EXT.P24 TRUE COPY OF THE RELEVANT PAGES OF DR.L.R.KADIYALI'S TRAFFIC ENGINEERING AND TRANSPORT PLANNING EXT.P25 TRUE COPY OF THE PHOTOGRAPHS SHOWING OF TWO BUS BAYS IN TRIVANDRUM CITY. EXT.P26 TRUE COPY OF THE SECTION 9(3) NOTICE ISSUED UNDER LAND ACQUISITION ACT DATED 21-7-08 EXT.P27 TRUE COPY OF THE HEARING COMMUNICATION DATED 28-7-08 EXT.P28 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE BUSINESS CONCERN ARE STILL WORKING IN FULL SWING. EXT.P29 TRUE COPY OF THE RETAIL INVOICE DRAWN FROM THE PETITIONER'S SHOP AND THE NARMAMDA DRIVE IN RESTAURANT. /True Copy/ PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No.36880 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2008 JUDGMENT Petitioner who is aggrieved by the proposal of the respondents to acquire his property extending to 11 cents for the construction of a bus bay at the request of the 4th respondent TRIDA has filed this writ petition seeking the following reliefs; “i) To declare the notice dated 26-11-2007 served on M/s. Narmada Building Enterprises (P) Ltd for taking over 11 cents of land in survey No.7 as illegal and to stay all further proceedings thereon. ii) Issue a writ of mandamus or any other appropriate writ, order or direction of the nature of mandamus directing the respondents 1 to 5 not to initiate any proceedings for acquisition of the property belonging to the petitioner without notice as contemplated under the provisions of Land Acquisition Act, 1894 and not to exceed the extent of acquisition in Survey No.7. iii) Issue a writ of mandamus or any other appropriate writ, order or direction of the nature of WPC.No.36880/07 2 mandamus directing the respondents 1 to 5 not to exceed the extent of acquisition in Survey No. 7 of Perurkada village beyond 0.0160 hectares (4 cents) shown in the original gazette notification dated 03-05-2007 (Ext.P9) iv) Issue a writ of mandamus or any other appropriate writ, order or direction of the nature of mandamus directing the respondents to consider the other sites pointed out by the petitioner available for locating the bus bay which is situated near to the petitioner's property in government land which would ultimately reduce the land acquisition expenses and would be in public interest.” 2. Counter affidavits have been filed wherein it is contended that advance possession of the petitioner's property has been taken. When the above contention was seriously disputed, this court appointed Sri.Thoufeek Ahamed as Advocate commissioner for conducting a local inspection. Sri.Thoufeek has conducted local inspection and filed his report. Sri.Thoufeek Ahamed's report is to the effect that the petitioner continues to carry on business in Iron, steel and cement in the premises in question. WPC.No.36880/07 3 3. Today the petitioner has produced photographs taken on 30/7/2008. These photographs also will reveal that the version of the petitioner that he has not been dis-possessed and he is now carrying on business is probable. Apart from the photographs petitioner has also produced copy of the notice under section 9(3) which was received by him inviting him to an award enquiry. 4. Sri.Basant Balaji, learned Government Pleader and Sri.K.A.Jaleel, standing counsel for TRIDA would submit that the order of the Government according sanction for invocation of the emergency provision of section 17(1) and order of the Land Revenue Commissioner directing enquiry under section 5A need not be conducted in this case are not under challenge. Learned counsel would therefore request that the respondents be permitted to continue with the acquisition from the stage of the declaration under section 6 which also they pointed out, is not specifically under challenge. 5. Sri.R.S.Kalkura, learned counsel for the petitioner would concede that the petitioner is yet to challenge the order the government according sanction and order of the land revenue commissioner WPC.No.36880/07 4 dispensing with enquiry under section 5A. He took exception to the submission that declaration 6 has not been challenged. According to him, declaration has been challenged. He drew my attention to the various grounds raised in the writ petition and submitted that malafides tainting the entire acquisition is evident. Having considered the rival submissions, I am of the view that so long as the order of the Government under section 17(1) and the order the land revenue commissioner under section 17(4) stand, the petitioner cannot aspire for the reliefs sought for in this writ petition. The allegation of malafides remains as allegations not yet substantiated by producing any convincing material. I am therefore, not inclined to grant the reliefs sought for. However, considering the submission of Sri.Kalkura that the petitioner is collecting materials so that he can challenge the order of the Government under section 17(1) and the order of the land revenue commissioner under section 17(4), even as I dismiss the writ petition declining the reliefs sought for, there will be a direction that the petitioner will be permitted to maintain status quo as obtaining today as revealed by the Commissioner's report and the WPC.No.36880/07 5 three photographs produced today for a period of 15 days from today. It is open to the petitioner to participate in the award enquiry for which he has been given notice without prejudice to his contentions in this writ petition and the prospective writ petition. This judgment also will not stand in the way of the petitioner filing appropriate petition before the High Level Committee for Capital Region development for Thiruvananthapuram city within seven days from the date of receipt of a copy of this judgment. If the petitioner files application before the High Level Committee within seven days of his receiving copy of this judgment, the Committee will consider the application and pass appropriate orders after affording hearing opportunity to the petitioner. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.36880/07 6