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. 36791 of 2007(E) -------------------------- PETITIONER: ------------ SREEDEVI, W/O.SUSEELAN PILLA, SREEMANDIRAM, PAYYAMBRA ILLOM ROAD, PERUNNA EAST, CHANGANACHERRY, KOTTAYAM DIST. BY ADV. SRI.JOHNSON P.JOHN SRI.BABY MATHEW RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOTTAYAM. 3. THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, KOTTAYAM. 4. LAND ACQUISITION OFFICER SPECIAL TAHSILDAR, LAND ACQUISITION GENERAL, KOTTAYAM. 5. CHIEF TECHNICAL EXAMINER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 6. C.F.THOMAS, M.L.A., CHANGANACHERRY. 7. ABY WILSON, ASST.EXECUTIVE ENGINEER, PWD, WHITE HOUSE, PAYYAMBRA ILLOM ROAD, CHANGANACHERRY. 8. EYO OUSEPH, MANAKKUNNEL, PERUNNA EAST P.O., PAYYAMPRA ILLOM ROAD, CHANGANACHERRY. 9. REMANI MENON, PUTHIYARA HOUSE, PERUNNA EAST P.O., CHANGANACHERRY. BY GOVERNMENT PLEADER SRI.BASANTH BALAJI FOR T1 TO 5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS; EXT.P1; COPY OF THE COMMON JUDGMENT DATED IN WPC NO.35301/03. EXT.P2; COPY OF THE PLAN PREPARED BY THE EXECUTIVE ENGINEER. EXT.P3; COPY OF THE OBJECTION AND ALTERNATE PLAN SUBMITED BY PETITIONER'S FATHER. EXT.P4; COPY OF THE REPLY DATED 7.6.2004 SUBMITTED BY PETITIONER'S FATHER. EXT.P5; COPY OF ORDER DATED 28.9.2004.. EXT.P6; COPY OF THE ANEWSPAPER REPORTS DATED 7.10.2004 AND 8.10.2004. EXT.P6A; COPY OF THE NOTIFICATION DATED 17.11.2004. EXT.P7; COPY OF THE ORDER DATED 19.7.2001 OF 1ST RESPONDENT. EXT.P8; COPY OF SKETCH AND COMMENTS FILED BY 2ND RESPONDENT. EXT.P9' COPY OF NOTICE OF AWARD DATED 10.10.2007. EXT.P9(A): COPY O NOTICE DATED NIL. EXT.P10; COPY OF THE MAP. EXT.P10; COPY OF ALTANATE PLAN SUBMITTED BY THE PETITONER. EXDT.P11; COPY OF TEXT RECEIPT DATED 9.12.1994. EXT.P12; COPY OF THE FIELD SKETCH OF BLOCK NO.240 OF CHANGANACHERRY VILLAGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 36791 of 2007 ---------------------------------- Dated this the 8th day of July , 2008 JUDGMENT In this writ petition under Article 226 of the Constitution, the petitioner, whose properties are proposed to be acquired for the construction of the 4th reach of Changanachery bye-pass road, refers to Ext.P1 judgment of this court dated 15.1.2004 in a writ petition filed by her father Capt.P.Sreedharan Nair. The petitioner submits that in Ext.P1 judgment , which was a common judgment in three writ petitions including the one filed by her father and by other residents of the Chenganachery Municipality opposing changes in the alignment of the bye-pass road with the alleged objective of protecting the interest of certain persons even at the cost of sacrificing new constructions belonging to the petitioners, this court directed the District Collector (2nd respondent in this writ petition) to fix the alignment after hearing all affected persons in the disputed areas whose houses will be demolished and after perusing the plan to be prepared by the Executive Engineer WPC No. 36791/2007 2 PWD Kottayam ( 3rd respondent herein) keeping in mind the straight course of the road and causing least destruction of the built up property and least cost to the exchequer and to be forwarded to the District Collector with objections and alternate suggestions. Ext.P2 is the plan with buildings and land marks proposed by the 3rd respondent Executive Engineer. The petitioner complains that though she was an affected party, she was never served with copy of the plan inviting objections and alternate suggestions. She was never served with any notice to peruse the plan. But her father submitted objection to Ext.P2 and alternate plan. Ext.P4 is copy of the objection and alternative plan submitted by the petitioner's father. According to the petitioner, if the alternative plan proposed by her father is accepted, three residential houses including her own could be saved. Though the proceedings were initiated from the office of the District Collector for hearing, the District Collector directed the Executive Engineer to offer his comments regarding the petitioner's father's objection. To the comments submitted by the Executive Engineer, the petitioner's father submitted Ext.P4 reply. The petitioner complains that though it was thought that WPC No. 36791/2007 3 there would be a detailed hearing into Exts.P3 and P4 by the District Collector, what the District Collector did was to pass order dated 28.9.2004 without hearing any of the parties overruling the objections and directing the Executive Engineer to prepare a slightly modified alignment plan in the light of that order. Ext.P5 is that order. It is alleged that it is at the instance of the 6th respondent – Sri.C.F.Thomas, M.L.A. that then the District Collector abandoned the proceedings without hearing any of the persons affected by the proposal for acquisition. Ext.P6 news paper report is relied on in this context. Ext.P6 (a) produced by the petitioner is a combined notification under Sections 4 (1) and 17(4) of the Land Acquisition Act issued by the 4th respondent. Individual notice under Rule 7 (2) in Form No.IV of the Land Acquisition Rules was also issued to the petitioner's father informing him that an extent of 11.82 Ares (27 cents) of land in re-survey No.240/1 is proposed to be acquired for the construction of Changanacherry bye-pass . The petitioner submits that she was never issued any separate notice through her name was shown in the notice issued to the petitioner's father. The petitioner contends that her property WPC No. 36791/2007 4 was not included in Ext.P6(a) notification. The petitioner's father had been making earnest request for fixing the alignment through the vacant land lying adjacent to the road which will also straighten the course of road as envisaged by Ext.P1 judgment. Successive representations were submitted by the petitioner's father in this regard. According to the petitioner, though her grievance is genuine and worthy on consideration, the same has not been considered. The first respondent – State and the 4th respondent – Land acquisition Officer are proceeding with their plan in violation of the rules as well as Ext.P1 judgment of this court. The changes in the alignment have been made to suit the convenience of influential persons. The petitioner refers to the case of the change of alignment for helping one Sri.P.H.Haneefa who was unsuccessful before this court. The petitioner points out that contrary to the opinion of the 3rd respondent, changes in the alignment have been made by the District Collector for saving the property of one Sri.K.P. Abdul Karim and his wife. Ext.P8 is relied on in this context. The petitioner is now served with Ext.P9 notice under Rule 15 (3) directing her to vacate the building forthwith. According to her, WPC No. 36791/2007 5 she has not received any notice in the matter of acquisition except the award notice dated 10.10.2007. The petitioner has produced Ext.P10 sketch with regard to the disputed alignment. The petitioner contends on the basis of Ext.P10 that the alignment is unnecessarily shifted towards west by making a curve anterior to the property of one Smt.Sreekala. That shift should have been avoided by straightening the road following the slight change suggested by the other affected parties or by correctly following the Government order as well as court direction. On the above averments, the petitioner has raised various grounds and filed the writ petition seeking the following reliefs; i). to issue a writ of certiorari or other appropriate writ or order calling for the records relating to Ext.P9 and P9A notices and to quash it; ii). To direct the fourth respondent to conduct survey and measurement in the WPC No. 36791/2007 6 properties within the disputed area of about 100 meters on either side of the petitioner's house in the alignment of 4th reach of Changanacherry bye-pass road after issuing notice as prescribed under Section 4 of the Land acquisition Act and to pass appropriate orders thereon. Iii). To issue a writ of mandamus or other appropriate writ or other order directing the fourth respondent to re-consider Ext.P10 map for construction of the road in straight course without destruction of the house of petitioner after providing an opportunity of personal hearing along with the change marked in green lines. iv). To direct the respondents 1 to 4 to review the project in view of the alternate alignments on records in the present WPC No. 36791/2007 7 circumstances and if necessary to fix the alignments afresh in strict compliance of the observations and direction contained in ext.P1 judgment dated 15.1.2004 of this Hon'ble Court. v). To direct the respondents 1 to 4 to forebear from any further action to dispossess petitioner's land and building No.366 in Re- Sy. No.240/40 of changanacherry Village for construction of Changanacherry bye-pass road. vi). To direct the respondents 1 to 4 to produce the records relating to the alignment of 4th reach of Changanacherry bye-pass road with buildings and land marks therein said to be approved by first respondent and the changes made thereon by the second nonrespondent and till then to stay further WPC No. 36791/2007 8 proceedings in the matter. Vii). And to allow th costs of this petition 2. Detailed counter affidavits have been filed on behalf of the 4th respondent Land Acquisition Officer and also by the Assistant Executive Engineer on behalf of the 3rd respondent. It is contended in the counter affidavit of the land acquisition officer that the Land Acquisition Officer had inspected the land proposed to be acquired and it was found that there was no objectionable elements such as Temple, Mosques, Churches, Burial or burning grounds in or near the land to be acquired. The Land Revenue Commissioner, Thiruvananthapuram in his proceedings No. LR (C3) 54055/04/K. Dis. Dated 10.11.2004 has issued orders for invoking urgency clause under Section 17 (4) of the Land Acquisition Act. The Preliminary notification under Section 4 (1) of the Central L.A.Act has been duly made and published. Rule 7 (2) notice have been issued as provided in the rules and has been served on all persons known to be WPC No. 36791/2007 9 interested on the land through special messenger and published in the locality on 20.1.2005. Consequent to the issue of 4 (b) notice, no one has appeared before the Land acquisition Officer and thereafter, the land acquisition proceedings were initiated on the basis of requisition and alignment received from the PWD authorities. The Land Acquisition Officer has submitted that he is not involved in the matter of fixation of the alignment of the bye-pass. The survey and sub division work on the land was taken up after publishing the notification under Section 6 of the Survey and Boundaries Act 1961. The sub division records were scrutinised and approved by the District Superintendent of Survey and Land Records, Kottayam. The land involved in this case is LAC No.62. As per LAC 62, dry land measuring 0.0212 hectares situated in Changanacherry village comprised in Sy.No.40/1, Block No.240 is the land under acquisition proceedings. The said land belongs to the petitioner. The land acquisition proceedings in LAC 62 has been completed up to the award stage. Award has been passed fixing total compensation of Rs.5,82,784/-. It is submitted that succeeding and preceding land holdings in the alignment have already been acquired and WPC No. 36791/2007 10 handed over to the PWD, the requisitioning authority and now the acquisition of land for bye-pass is at the final stage. It is stated in the counter affidavit that any modification in the alignment is not possible since almost 95% of the work has been completed. 3. In the counter affidavit submitted on behalf of the Executive Engineer it is contended that proposed shift of four meters in Ext.P3(5) plan from the straight course of the alignment to save the property of the petitioner will create a very inconvenient curve. It will also affect another building which is not permissible as per the directions of this court in Ext.P1 judgment. As per the alternative alignment suggested by the petitioner under Ext.P3 (5) House Nos. 92 and 95 will also be affected. The other two proposals in Ext.P3(6) and P3(7) do not deserve consideration as this will render the whole Land acquisition process already completed as wasteful exercise necessitating repetition of the whole process. This counter affidavit also points out that moreover, 95% of the work on the bye-pass is completed. Lastly the counter affidavit submits that the project has been held up for about a quarter of century on WPC No. 36791/2007 11 account of protracted litigation by the land owners and almost all the complaints except a couple of cases under the consideration of this Court have been settled and the work is nearing completion. The tempo has to be maintained for the speedy fulfillment of the project. Any interruption at this stage will be detrimental to the public interest. 4. To the counter affidavits filed by the respondents, the petitioner has submitted a detailed reply affidavit reiterating her contentions and denying the contentions of the counter affidavit. Ext.P11 Tax receipt and Ext.P12 copy of the full sketch pertaining to the block No. 240 of Changanacherry village are relied on by the petition to drive home the point that the petitioner's property is not included in the notification under Section 4 (1). 5. I have heard the submissions of Sri. Johnson P.John, the learned counsel for the petitioner and Sri.Basant Balaji, the learned Government Pleader. The learned counsel addressed submissions on the basis of the pleadings raised by their respective parties and the materials placed on record. Even though Sri.Johnson P.John would submit seriously by referring to WPC No. 36791/2007 12 the survey numbers shown in Ext.P6(a) and survey number shown in the title documents and tax receipt pertaining to the petitioner's property that the petitioner's property is not covered by Ext.P6(a) notification under Section 4 (1), I am not impressed by those submissions of the learned counsel. The averments in the writ petition and the various documents produced along with the same particularly Ext.P5 order of the District Collector will show that neither the petitioner nor her father Capt.Sreedharan Nair (in whose favour only Ext.P1 judgment was passed by this court) have any doubt regarding the identity of their properties proposed to be acquired by the Government for the purpose of construction of the Changanachery bye-pass road. A careful reading of the petitioner's own averments in the writ petition will show that while moving this court and obtaining Ext.P1 judgment, the petitioner's father was espousing the common case of himself and the petitioner. The petitioner's complaint against the District Collector for not having afforded a separate hearing opportunity to her pursuant to Ext.P1 is not liable to be entertained. Ext.P5 order has been produced by the petitioner herself and as already WPC No. 36791/2007 13 indicated Ext.P5 will show that the petitioner's father Capt.Sreedharan Nair was pursuing the petitioner's case also. Significantly, the petitioner does not seek quashment of Ext.P5 in this writ petition. What she seeks is only a slight shift in the alignment which is seen re-fixed as per Ext.P5. Fixation of alignments in the matter of road is a matter, which in my opinion should be left primarily to the requisitioning authority, which in this case is the Kottaym Division of the State Public Works Department. The Executive Engineer himself should be an experienced Civil Engineer and obviously the alignment has been fixed by him with the assistance of many others with technical knowhow and expertise. In Ext.P5 order passed by the District Collector in pursuant to Ext.P1 judgment of this court, it is seen that all possibilities of affecting shift in the alignment have been explored by the District Collector in the light of the observations in Ext.P1 judgment. When the stand taken by the third respondent is that the further shift sought for by the petitioner cannot be granted for practical and technical reasons, I do not find any materials placed by the petitioner justifying a direction to the technical authorities to consider the petitioner's request for WPC No. 36791/2007 14 shifting the alignment. Acquisition for construction of new roads is sure to result in heart burns for persons who are being deprived of their land and buildings. Such heart burns are inevitable. It is not disputed that the need to construct the Chenganachery bye pas road is a genuine public purpose pending for decades. It is also not in dispute that the need is an emergent one considering the traffic conjestion of the town and importantly the petitioner is yet to challenge the order of the Land Revenue Commissioner according sanction for invocation of the emergency provision under Section 17(4). Allowing the shift which is said to be not technically viable and highly impractical will result in accomplishment of this project being delayed indefinitely. 6. A point which was seriously addressed before me by Sri.Johnson.P.John was that the award which is said to be already passed by the Land Acquisition Officer in respect of the petitioner's property is vitiated for the reason that the same is not preceded by an individual notice inviting claims under Section 9 (3). As already indicated, almost the entire land required for the construction of the long cherished project of WPC No. 36791/2007 15 Changanechery bye-pass has already been taken possession and the project remains incomplete due to the reason of non obtainment of possession of the properties which are subject of this writ petition and the writ petition Nos. 27437/2007 & 34347/2007, which are being disposed of by separate judgments. This court is not inclined to invoke the discretionary jurisdiction under Article 226 of the Constitution in these land Acquisition proceedings where awards have been passed. Though the learned Government Pleader was not able to convince me that individual notice inviting claims under Section 9(3) has been served on the petitioner, I am not inclined to interfere with the award on that reason since it is seen that the petitioner's father who had been espousing petitioner's case also, was having notice regarding the award enquiry. On the facts of this case, notice which had been given to the petitioner's father regarding the award enquiry can be construed as notice given to the petitioner herself. The public nature of the purpose can never be in doubt and I have already found that petitioner's request for shifting the alignment of the bye pass cannot be accepted. That being the position, even if the petitioner had been issued WPC No. 36791/2007 16 with individual notice under Section 9 (3), the best that could have been done by the petitioner was to substantiate her claim for correct compensation for the acquired properties. Sri. Johnson P.John was not able to show that on account of non participation in the award enquiry any prejudice has been caused to the petitioner in the matter of compensation determined by the Land Acquisition officer. In fact it was conceded by Sri.Johnson that despite award notice under Section 12 (2), the petitioner has not so far applied for reference under Section 18 of the Land Acquisition Act. Prejudice, if any which has been caused to the petitioner on account of her non receiving individual notice under Section 9(3) can be removed , in my opinion, if the petitioner is permitted to apply for reference under Section 18 regarding the award already passed. The result of the above discussion is that; i). The reliefs sought for in the writ petition are declined. ii). The 4th respondent is directed to entertain application under Section18 for reference to the question of determination of the correct compensation payable to the petitioner's acquired WPC No. 36791/2007 17 properties, if such application is received from the petitioner within seven days of the petitioner receiving a copy of this judgment and to consider the same favourably notwithstanding the apparent delay. The writ petition is disposed of as above. PIUS C. KURIAKOSE JUDGE dpk