IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 WP(C).No. 28886 of 2007(L) -------------------------- PETITIONER(S): --------------- K.V. KOYA, S/O. MAMMAD KOYA, AGED 56 YEARS, PRESIDENT, SALAFI CENTRE, KARUVASSERY, SURUUR, 39/2318 PUTHIYANGADI, KOZHIKODE-673 021. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVT. DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SPECIAL TAHSILDAR (LAND ACQUISITION) KOZHIKODE. 3. THE SUB DIVISIONAL MAGISTRATE, KOZHIKODE. 4. THE DISTRICT COLLECTOR (CIVIL STATION), KOZHIKODE. ADDL. R5: CORPORATION OF CALICUT CORPORATION OFFICE, CALICUT IS IMPLEADED AS ADDL.R5 VOIDE ORDER DT. 7-4-08 IN IA. 4792/08. SR. GOVERNMENT PLEADER FOR R1 R2 SRI.BASANT BALAJI SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP FOR ADDL.R5 SRI.K.D.BABU,SC,KOZHIKODE CORPORATION FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX: EXT.P1 TRUE COPIES OF DOCUMENTS BEARING NOS. 2433 OF 1999 AND 940 OF 2002 DATED 6-9-1999 AND 8-4-2002 EXT.P2 TRUE COPY OF A SKETCH OF THE PROPOSED SITE EXT.P3 TRUE COPY OF THE PUBLIC NOTICE IN FORM NO.4 (A) DATED 22-8-2001 EXT.P4 TRUE COPY OF THE PUBLIC NOTICE IN FORM NO.4 (A) DATED 22-8-01. EXT.P5 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 6-10-2001 EXT.P6 TRUE COPY OF THE NOTICE DATED 20-8-04 ISSUED BY THE UNDERSECRETARY TO GOVERNMENT. EXT.P7 TRUE COPY OF THE TELEGRAM RECEIVED BY THE PETITIONER ON 3-9-04 EXT.P8 TRUE COPY OF THE NOTICE NO.A.1255/02(3) DATED 15-9-2007ISSUED BY THE SECOND RESPONDENT TO TAKE OVER POSSESSION OF LAND UNDER RULE 15 (3) IN FORM NO.12 OF LAND ACQUISITION (KERALA) RULES. EXT.P9 TRUE COPY OF THE NOTICE OF AWARD DATED 15-9-2007 ISSUED BY THE SECOND RESPONDENT LAND ACQUISITION OFFICER TO THE PETITIONER UNDER RULE 13(1) IN FORM NO.10(B) OF LAND ACQUISITION (KERALA) RULES. //TRUE COPY// PS TO JUDGE. PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No.28886 OF 2007 ----------------------------------------------- Dated this the 30th day of September, 2008 J U D G M E N T The petitioner who claims to be the President of Salafi Centre, a committee established at Karuvassery, Kozhikode is aggrieved by the proceedings initiated for acquisition of immovable property belonging to Salafi Centre by virtue of Ext.P1 for the establishment of a park for the additional 5th respondent, the Calicut Corporation. Ext.P3 dated 22-8-01 is copy of the public notice issued under rule 7(1) of the Land Acquisition Kerala Rules regarding notification under section 4(1) of the Land Acquisition Act. To Ext.P3 petitioner has submitted Ext.P4 objections before the L.A. Officer and Ext.P5 objections before the Government. The Government issued Ext.P6 hearing notice. Later the hearing was adjourned by Ext.P7 telegram. In Ext.P7 telegram the petitioner was informed that next hearing date will be intimated. According to the petitioner proper enquiry under section 5A was never conducted and declaration under section 6 was never issued. But to his surprise the second respondent L.A. Officer has issued Ext.P9 award notice under section 12(2) and Ext. P8 possession notice under section 15(3), on both bearing date 15-9-07. According to the petitioner Exts.P8 and P9 are violative of Article 300A of the WP(C)N0.28886/07 -2- Constitution of India read with Articles 14 and 21 and as amended the writ petition is filed with the following prayers. 1. Call for the records leading to Exts.P8 and P9 notices both dated 15-9-2007 issued by the second respondent and set aside the same by issuing a writ of certiorari or any other appropriate writ, direction or order. 2. Declare that the acquisition proceedings based on Ext.P3 is barred by limitation and it is illegal and unsustainable in law. 3. Alternatively, to call for the records leading to Ext.P4 and to direct the 2nd respondent to conduct enquiry based on Ext.P4 objection submitted under section 5A of the Land Acquisition Act and consider Ext.P4 objection and dispose of the same after hearing the petitioner expeditiously. 4. To call for the records relating to Exts.P5, P6 and P7 and direct the first respondent to dispose of Ext.P5 objection/ representation after hearing the petitioner expeditiously. 5. To direct the respondents to keep in abeyance the land acquisition proceedings till the enquiry under section 5A is completed and communicated to the petitioner and the procedure under the Land Acquisition Act is followed. 6. To stay the acquisition proceedings pursuant to Exts.P3, P8 and P9 pending disposal of the enquiry. The main grounds on which the above reliefs are sought for are: 1. Enquiry under section 5A has not been conducted in the petitioner's case and the order has not been communicated to the petitioner. 2. The acquisition proceedings are malafide and there is no genuine public purpose for the acquisition. 3. The declaration under section 6 and the award passed under section 11A are barred by limitation. WP(C)N0.28886/07 -3- 4. Ext.P8 possession notice in as much as the petitioner is given time till evening of 29-9-07 only to vacate and threatening Magisterial action in the event of petitioner not vacating, violates Articles 300A read with Articles 14 and 21. 2. Detailed counter affidavits have been filed by the requisitioning authority, the Corporation of Calicut and also by the acquisition authority, the L.A. Officer. The requisitioning authority has contended that the proceedings for acquisition of the petitioner's property, still larger extent of property belonging to one Haridasan Nair were initiated for the construction of a park. Construction of a public park which will be benefited to the entire public of the Corporation particularly those inhabiting Division No.37 of the Corporation. The petitioner's site is situated between two roads and is therefore unsuitable for making constructions. On the contrary it is ideal for a park which is capable of providing greenery for maintaining a suitable environment. The counter affidavit denies the allegation that the proposal was mooted for preventing the construction of a Masjid at the site and it is pointed out that even before the petitioner purchased the land the proposal for constructing part had been conceived and initiated. It is pointed out that Sri.Haridasan Nair, whose properties were also being acquired unsuccessfully challenged proceedings vide WP(C) No. 33720 of 2001. It is further pointed out that there was a review petition and writ appeal also (RP.227/4 and WA. 1107/06) at WP(C)N0.28886/07 -4- the instance of Sri.Haridasan Nair and that the contention that the acquisition was for a public purpose was upheld by this court. It is then contended that 5A enquiry was duly conducted and that award has been passed. The land acquisition officer would also refute the contentions of mala fides and ill-motive raised by the petitioner. As for the question of limitation it is pointed that Sri.Haridasan Nair obtained an order dated 15-2-2007 from this court (later produced as Ext.P10) in which it has been stated that though the land acquisition proceedings can go on, award shall be passed and petitioner Sri.Haridasan Nair will be dispossessed only after obtaining orders from the High Court. It is submitted that on the basis of the said order passed by this court passage of award in the case of the petitioner's property was also kept pending. But on coming to know of the final dismissal of writ petition filed by Sri.Hariasan Nair proceedings were continued and award was passed. It is submitted that in this writ petition on 28-9-07 this court granted interim stay for a period of one month restraining the Special Tahsildar from dispossessing the petitioner in implementation of Exts.P8 and P9. It is submitted that this court's order was brought to the L.A. Officer's office only at 4.35 p.m. on 29-9-07, but long before that the land was taken possession of and handed over to the requisitioning authority in the morning of WP(C)N0.28886/07 -5- 29-9-07. To the above counter affidavits the petitioner has filed reply affidavit reiterating his contentions. 3. It was very extensive arguments which were addressed before me by Mr.K.M.Firoz, learned counsel for the petitioner, Mr.Basant Balaji, learned senior Government Pleader and Sri.K.D.Babu, learned standing counsel for the Calicut Corporation . Learned counsel drew my attention to the various materials placed on records as well as to the relevant statutory provisions, particularly section 11-A of the Land Acquisition Act. Land Acquisition file was also made available for perusal by the learned Government Pleader. Having considered the rival submissions addressed before me and having scanned the file and the materials I find that the petitioner has been dispossessed of his properties on the basis of the award passed by the land acquisition officer on 29-9-07. 4. It is trite that that this court should be very slow in invoking constitutional jurisdiction under Article 226 in respect of acquisition proceedings in cases where award has been passed and possession has been taken. Taking over of possession comes finality to the land acquisition proceedings in view of section 16 of the statute. I am not impressed by the argument. 5. One of the arguments which was seriously addressed before WP(C)N0.28886/07 -6- me by Mr.Firoz that the award was time barred one and that a time barred award is non est and possession taken on the basis of such a time barred award is illegal and therefore a direction should be issued to the respondents to put the petitioner back in possession of the property. I am not impressed. Relevant declaration under section 6 has been issued on 17-8-2002. The award is dated 21-6-2007 which is apparently beyond the statutory time frame. Petitioner may be technically right in contending that Ext.P10 stay order does not pertain to his properties. But it was not the petitioner's property alone which was being acquired for the corporation purpose of constructing park. The direction which had been given to the land acquisition officer was to identify and acquire the lands necessary for establishing the park. The land acquisition officer in my opinion was justified in treating the entire properties covered by the notification under section 4(1) as being covered by Ext.P10. Ext.P10 was binding on the L.A. Officer and the Government. The paramount statutory duty cast on the L.A. Officer is to pass award and take possession without which the purpose of the acquisition from the point of view of the requisitioning authority will not be accomplished. The argument of the petitioner that there is no public purpose and that the acquisition is actuated by the mala fide intention of defeating the petitioner's proposal of constructing a Masjid WP(C)N0.28886/07 -7- is not supported by any material placed on record by the petitioner. The purpose in my opinion is a public purpose and the citizens of the Corporation generally and those belonging to Division No.37 will be benefited particularly by the accomplishment of the said public purpose. It is found from the materials available before me including the file that possession has been taken and proceedings have attained finality. I am therefore not inclined to grant the reliefs sought for. 6. At the same time it should be noticed that even though right to property is no longer a fundamental right but continues to be a constitutional right by virtue of Article 300A. The petitioner is entitled for adequate compensation for their properties which are taken over in exercise of powers of eminent domain by the State. The statement itself provides for ensuring persons who are deprived of their properties by land acquisition proceedings of adequate compensation it is seen that the petitioner is well aware of section 18 of the Act and had already applied for a reference under section 18 for determination of the correct compensation for his acquired properties. The Government Pleader submitted that though the award notice is dated 15-9-07 it was served only on 26-9-7 and that the petitioner submitted reference application on 31-10-07. If this is so, the application for reference is on time. In this context the judgment of the Supreme WP(C)N0.28886/07 -8- Court in ................... According to me, on the facts and circumstances which obtained in this case, the only relief which the petitioner can now aspire for is to have a reference under section 18 made to the court early, so that the court will adjudicate the issue at the earliest. Therefore even as the reliefs sought for are declined I dispose of the writ petition issuing the following directions. The second respondent is directed to favourably consider the application for reference under Section 18 submitted by the petitioner within three weeks of receiving copy of this judgment and make a reference to the competent Subordinate Judge's Court for determination of correct compensation payable for the acquired properties. The court will register the reference case without delay and facilitate adjudication of the issue and pass its award at the earliest. (PIUS C.KURIAKOSE, JUDGE) ksv/-