IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 5202 of 2005(T) ------------------------- PETITIONER: ------------ 1. V.RAGHAVAN NAIR, S/O.GOVINDAN NAIR, LAKSHMI NILAYAM, VENGERI POST, CALICUT-10. (DIED) 2. KUNIYIL GOURI AMMA, 62 YEARS, W/O.NARAYANAN NAIR, KUNIYIL HOUSE, VENGERI POST, CALICUT-10. 3. KUNIYIL PADMAKSHI AMMA, 75 YEARS, D/O.APPU NAIR (LATE), KUNIYIL HOUSE, VENGERI POST, CALICUT-10. 4. KUNIYIL NARAYANKUTTY NAIR, 65 YEARS, S/O.APPU NAIR (LATE), KUNIYIL HOUSE, VENGERI POST, CALICUT-10. 5. KUNIYIL PRABHAKARAN NAIR, 68 YEARS, S/O.APPU NAIR(LATE), KUNIYIL HOUSE, VENGERI POST, CALICUT-10. 6. KUNIYIL SUKUMARAN NAIR, 60 YEARS, S/O.APPU NAIR(LATE), KUNIYIL HOUSE, VENGERI POST, CALICUT-10. 7. T.PADMINI AMMA, W/O.KUNHIRAMAKURUP(LATE) PADMALAYAM, VENGERI POST, CALICUT-10. (L.R. OF KUNHIRAMAKURUP) 8. BHAMINI, 50 YEARS, W/O.SEKHARAN NAIR, ILLATH HOSUE, VENGERI POST, CALICUT-10. 9. KUNHIKUTTY AMMA, 72 YEARS, W/O.KUTTAPPAN NAIR, PILLATTIL HOUSE, VENGERI POST, CALICUT-10. (SISTER OF KALLODI MADHAVAN NAIR). 10. THANKAMMA C.K., AGED 60 YEARS, W/O OF LATE RAGHAVAN NAIR. 11. BABURAJ C.K. AGED 40 YEARS, S/O. LATE RAGHAVAN NAIR. 12. PREMRAJ C.K. AGED 37 YEARS S/O. LATE RAGHAVAN NAIR. 13. MINI.C.K. AGED 36 YEARS, D/O. LATE RAGHAVAN NAIR. (PETITIONERS 10 TO 13 ARE IMPLEADED AS PER ORDER IN I.A.8726/08 DATED 8.9.2008) BY ADV. SMT.LATHA PRABHAKARAN RESPONDENTS: ------------- 1. CORPORATION OF CALICUT, CALICUT CORPORATION OFFICE, CALICUT, REP. BY ITS SECRETARY. 2. SPECIAL TAHASILDAR, L.A. KOZHIKODE. 3. STATE OF KERALA, REP. BY CHEIF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.C.M.SURESH BABU,SC,KOZHIKODE CORPN. FOR R1 GOVERNMENT PLEADER SRI.BASANTH BALAJI FOR R2,3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.5202/2005 APPENDIX PETITIONERS EXHIBITS; EXT.P1(A): COPY OF THE ORDER NO.29 DATED 30.5.1989 ( NO.E3-49608/88) of THE FIRST RESPONDENT CORPORATION. EXT.P1(B); COPY OF THE SITE PLAN PREPARED BY THE 1ST RESPONDENT CORPORATION. EXT.P2: COPY OF THE NOTIFICATION ISSUED UNDER SECTION 4 (1) OF THE LANDACQUISTIION ACT DATED 14.12.1990. EXT.P3; COPY OF THE NOTICE DATED 27.5.1991 BEARING REF. NO.A734/90. EXT.P4; COPY OF THE BASIC TAX RECEIPT OF THE 1ST PETITIONER. EXT.P5; COPY OF THE PERMIT NO.E6-125408-03 DATED 14.10.2004. EXT.P6; COPY OF THE ORDER DATED 6.11.2004 ISSUED BY THE TOWN PLANNING OFFICER OF THE 1ST RESPONDENT TO THE 1ST PETITIONER. EXT.P7; COPY OF THE APPEAL SUBMITTED BY THE 1ST PETITIONER TO THE 1ST RESPONDENT DATED 17.11.2004. EXT.P8; COPY OF THE DEATH CERTIFICATE ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, KOZHIKODE CORPORATION. EXT.P9; COPY OF FAMILY MEMBERSHIP CERTIFICATE ISSUED BY THE VILLAGE OFFICER, VENGERI. /TRUE COPY/ P.A TO JUDGE. PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 5202 of 2005 ---------------------------------- Dated this the 8th day of July , 2008 JUDGMENT The order dated 1.7.2008 is reviewed suo motu and the writ petition is restored to file. 2. Under challenge in this writ petition is Ext.P6 order issued by the Town Planning Officer of the Kozhikode Corporation cancelling Ext.P5 building permit issued to the petitioners for the construction of building on their property which is covered by Ext.P2 notification under Section 4 (1) of the Land Acquisition Act dated 14.12.1990. Under Ext.P2, the properties of all the petitioners are proposed to be acquired for the construction of a stadium at the request of the first respondent Corporation of Kozhikode. The following are the prayers in the writ petition. i). Call for the records relating to Ext.P2, P3 and P6 and quash them by the issuance of a writ of certiorari or other writ or order. WPC No.5202/2005 2 ii). Declare that the acquisition proceedings initiated as per Ext.P2 and P3 are lapsed due to non-compliance of the statutory formalities. Iii). Declare that the 1st petitioner is eligible and entitled to complete the construction of his residential building as per Ext.P5. iv). To declare that the petitioners are entitled to get compensation for the damage sustained to them due to the stoppage of all kinds of works in their land as per Ext.P2 and P3. 2. The Corporation has not filed any counter affidavit. I have heard the submissions of Smt. Latha Prabhakaran, the learned counsel for the petitioners and Sri. C.M.Suresh Babu, the learned Standing Counsel for the Corporation. My attention was drawn by Smt.Latha Prabhakaran to the provisions of the Land Acquisition Act dealing with the period of limitation for promulgation of declaration under Section 6 and also for passage of the award. Sri.Suresh Babu would submit that the Corporation has not given up the intention to construct the WPC No.5202/2005 3 stadium by acquiring the properties belonging to the petitioners. Smt.Latha Prabhakaran would submit that the first respondent Corporation has not able even to complete the construction of another stadium project taken up within the limits of the Corporation and the very proposal to have yet another stadium by acquiring the petitioners' property is actuated by oblique motives. 3. I am not impressed by the submission of the learned Counsel for the petitioners regarding the motive behind the proposal to acquire the petitioners' property. But, in view of statutory provisions such as Sections 6 and 11A of the Land Acquisition Act, the learned counsel is justified in submitting that the respondent Corporation will not be entitled to continue with the Acquisition based on Ext.P2. Under the above circumstances, I am of the view that it cannot be said that the properties are presently under acquisition proceedings. In that view of the matter, I quash Ext.P6 and permit the additional petitioners 10 to 13 to furnish a fresh plan regarding the proposal to construct residential building on their property covered by Ext.P2. If a fresh plan is submitted by the petitioners 2 to 9 and additional petitioners 10 to 13 within three weeks of receiving their copy of this judgment, the Secretary of the first respondent will consider that plan and if that plan is found to be in accordance with the Kerala WPC No.5202/2005 4 Municipality Building Rules, will grant approval to that plan and issue building permit without delay. As regards the proposal to acquire the properties of the petitioners, the respondents are permitted to initiate proceedings de novo for acquisition of those properties and to that extent the petitioners 2 to 9 and additional petitioners 10 to 13 are informed that their obtainment of building permit and putting up of constructions on the strength of that building permit will be at their risk in the sense that in the event of the land acquisition, they will lose the property though they will be eligible for compensation under the Land Acquisition Act. PIUS C. KURIAKOSE JUDGE dpk