IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 18092 of 2008(D) -------------------------- PETITIONERS: ------------ 1. M.I. ABDUL KAREEM, S/O IBRAHIM, AGED 48 YEARS, MEEKKAPADICKAL HOUSE, NEAR ROTARY CLUB, THANGALAM, NELLIKUZHI P.O., KOTHAMANGALAM. 2. SHEEJA ABDUL KAREEM, AGED 38 YEARS, W/O. ABDUL KAREEM, MEEKKAPADICKAL HOUSE, NEAR ROTARY CLUB, THANGALAM NELLIKUZHI P.O., KOTHAMANGALAM. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL RESPONDENTS: ------------- 1. THE KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM REPRESENTEDBY THE SECRETARY, 2. THE SECRETARY, KOTHAMANGLAM MUNICIPALITY, KOTHAMANGALAM 3. THE KOTHAMANGLAM MUNICIPAL COUNCIL, REPRESENTED BY THE CHAIR PERSON, KOTHAMANGLAM MUNICIPALITY KOTHAMANGALAM 4. NIMMI NAZAR, W/O NAZAR, CHAIR PERSON, KOTHAMANGLAM MUNICIPALITY KOTHAMANGALAM, 5. VIJU THOMAS, S/O THOMAS, VICE CHAIRMAN,KOTHAMANGALAM, MUNICIPALITY, KOTHAMANGALAM. 6. NAZAR KUNJI, MULAKKAKUDY, THANGALAM P.O.,KOTHAMANGALAM, (EXT. COUNCILOR OF KOTHAMANGALAM MUNICIPALITY). WPC 18092/08 7. THE DISTRICT COLLECTOR, ERNAKULAM. 8. STATE OF KERALA, REPRESENTED BY THE SPECIAL SECRETARY, LOCAL ADMINISTRATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVNANTHAPURAM. 9. ZAHEER HUSSAIN, S/O MOIDEEN PALATHINKAL HOUSE, THANGALAM, KOTHAMANGALAM P.O., 10. THE TAHSILDAR, (LAND ACQUSITION), KOTHAMANGALAM. *ADDL.R.11.THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM. *ADDL.R11 IS IMPLEADED VIDE JUDGMENT IN WPC 18092/08 DATED 29.8.2008. BY ADV. SRI.M.V.SABU FOR R6 SRI.ALEXANDER JOSEPH FOR R1 & R2 SRI.K.A.SHAMSUDEEN FOR R9 SRI.C.K.ABDUL RAHIM FOR R9 SRI.ALEXANDER JOSEPH FOR R3 TO R5 GOVT. PLEADER MR.BASANT BALAJI FOR R7, R8,R10 & R11. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.18092 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 29th August, 2008 JUDGMENT The Land Revenue Commissioner, Thiruvananthapuram is suo motu impleaded as additional respondent No.11. Registry will carry out corrections in the cause title. 2. The petitioners who are non-resident Indians are aggrieved by the proposal of the Kothamangalam Municipality, the 1st respondent to acquire 26 cents of land for the extension of the Thangalam private bus stand. On various grounds, the proceedings for acquisition is challenged and the Writ Petition has been filed seeking to quash Ext.P10 order of the District Collector appointing the Land Acquisition Officer and Ext.P12 order of the Government according administrative sanction to the Municipality for acquiring the petitioners property invoking the emergency provisions of the Land Acquisition Act on condition that the Government will not have any financial commitment in the matter. The petitioners also challenge Ext.P7 order by which the Municipality rejected their application for permission for construction of a building. 3. Detailed counter affidavits have been filed and the 9th respondent is the petitioners' vendor. Elaborate submissions were W.P.C.No.18092/08 - 2 - addressed before me by Mr.K.K.Chandran Pillai, counsel for the petitioners, Mr.Alexander Joseph, Standing Counsel for the Kothamangalam Municipality, Mr.K.A.Shamsudeen, counsel for the 9th respondent and the learned Government Pleader on the grounds/contentions raised. But it is clear from Ext.P10 order of the District Collector itself that the Land Revenue Commissioner, the competent authority has not so far issued any orders dispensing with the enquiry under Section 5A in respect of the proposed acquisition. The learned Government Pleader on the basis of the written instructions received by him from the District Collector would submit that administrative sanction from the Government for land acquisition had not been submitted by the Municipality along with requisition for acquisition. However, considering the requisition submitted by the Municipality in form No.2 prescribed under Rule 4(1) of the Land Acquisition (Kerala) Rules, 1990 (appended to Ext.P10), the District Collector appointed the 10th respondent, the Tahsildar(L.A.), Kothamangalam as the Land Acquisition Officer and directed him to initiate land acquisition proceedings after getting Government order sanctioning the acquisition. It is submitted that the Government has now issued administrative sanction vide Ext.P12. Thereafter W.P.C.No.18092/08 - 3 - preliminary steps were taken by both 7th and 10th respondent for getting sanction from the Land Revenue Commissioner for invocation of the provisions under Section 17(4) of the Act. But on perusing the report submitted by the Land Acquisition Officer in that regard, the District Collector directed the Land Acquisition Officer to explain in detail, as to why the enquiry under Section 5A should dispensed with in this case. It was submitted that the District Collector has issued letter dated 4.7.2008 in this regard to the Land Acquisition Officer. In the meanwhile, the petitioners filed a representation before the District Collector against the decision of the municipal authorities to acquire their land under the Land Acquisition Act. For all these reasons, the request of the Land Acquisition Officer for invocation of provisions under Section 17(4) of the Act has not been forwarded to the Land Revenue Commissioner. 4. The notification under Section 4(1) is yet to be promulgated in respect of the proposed acquisition. The Land Revenue Commissioner has not so far passed any order directing that in view of the extreme emergency of this case the enquiry under Section 5A need not be conducted. If an enquiry under Section 5A is conducted, it will be open to the petitioners to challenge the W.P.C.No.18092/08 - 4 - acquisition on all available grounds. I feel, having regard to the facts which have been unfurled before me by counsel and emerge from the various documents placed on record, and noticing the delay which has been occasioned already in the matter, that the petitioners should be allowed a say in the matter whether the present case is a fit one where the enquiry under Section 5A should be dispensed with. 5. Under the above circumstances, I dispose of the writ petition without deciding the grounds of malafides alleged in respect of the land acquisition proceedings issuing the following directions: 1. The District Collector-the 7th respondent will look into the representation received from the petitioners against the Municipality's decision to acquire their land while taking decision as to whether the Municipality's request for dispensing with enquiry under Section 5A should be recommended. 2. The Land Revenue Commissioner-the additional 11th respondent will issue hearing notice to the petitioners and hear them also if he comes to consider any request for invocation of Section 17(4) of the Land Acquisition Act regarding acquisition of the petitioners' property for the purposes of the third respondent. It is open to the additional 11th respondent to hear the third respondent also in the above W.P.C.No.18092/08 - 5 - context. The petitioners are permitted to urge all available grounds against the invocation of the provisions of Section 17(4) for the acquisition of their properties. The decision taken by the Land Revenue Commissioner will be communicated to the petitioners. srd PIUS C.KURIAKOSE, JUDGE