IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 WP(C).No. 12924 of 2004(L) ------------------------------- PETITIONER: -------------- 1. C.R. VASUDEVAN, 25, BASANT GARDEN, SION TROMBAY ROAD, CHEMBUR, MUMBAI-400 071 (CHOKKATHU HOUSE, DIWAN NARAYANA MENON ROAD, THRISSUR). 2. BABY VASUDEVAN, 25, BASANT GARDEN, SION TROMBAY ROAD, CHEMBUR, MUMBAI-400 071, (CHOKKATHU HOUSE, DIWAN NARAYANA MENON ROAD, THRISSUR.) BY ADV. SRI.ABRAHAM VAKKANAL (SR.) SRI.SAJI KURIACHAN SRI.M.R.NANDAKUMAR SRI.PAUL ABRAHAM VAKKANAL RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL), THRISSUR. BY GOVERNMENT PLEADER SMT.LATHA T.THANKAPPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE OBJECTION FILED BY THE IST PETITIONER BEFORE THE 2ND RESPONDENT dtd.25.11.2002. EXT.P2 TRUE COPY OF THE REPRESENTATION FILED BY THE IST PETITIONER BEFORE THE FIRST RESPONDENT dtd.2.12.2002. EXT.P3 TRUE COPY OF THE ORDER NO.59633/B2/2001/REVENUE IN RESPECT OF SIMILAR LANDS dtd. 20.10.2001. EXT.P4 TRUE COPY OF THE JDUGMENT IN O.P.38709/2002 dtd19.12.2002. EXT.P5 TRUE COPY OF THE REPORT OF THE DIST. COLLECTOR TO REVENUE MINISTER DTD.25.2.2003. EXT.P6 TRUE COPY OF THE HEARING NOTES SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DTD.2.4.2003. EXT.P7 TRUE COPY OF THE GO(Rt) No.827/03/ID dtd.18.8.2003. EXT.P8 TRUE COPY OF THE REPN. OF THE PETITIONERS FILED BEFORE THE FIRST RESPONDENT DTD.20.8.2003. EXT.P9 TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.27763/2003 DTD.29.8.03. EXT.P10 TRUE COPY OF THE COMMUNICATION SENT TO THE RESPONDENTS DTD.29.8.2003. EXT.P11 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT dtd.25.8.2003. EXT.P11(a) TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT dtd. 25.8.2003. EXT.P12 TRUE COPY OF THE REPLY SENT BY THE PETITIONERS TO THE 2ND RESPONDENT dtd.2.9.2003.. EXT.P13 TRUE COPY OF G.O.(Rt)NO.306/04/ID dtd.18.3.2004. true copy P.A.TO JUDGE PIUS C.KURIAKOSE, J. ====================================== W.P.(C)NO.12924 OF 2004 ====================================== Dated this the 23rd day of June 2008 JUDGMENT I have gone through the file. The file reveals that the contention in the two counter affidavits that the possession was taken on 27.8.2003 is correct. There is a mahazar prepared by the Land Acquisition Officer at the time of taking possession and the mahazar is attested by two respectable persons of the locality. Under the scheme of the Land Acquisition Act, acquisition proceedings attain finality when possession is taken and thereupon the land will vest with the government absolutely. In fact one of the defences of the government to the petitioner's request for quashing Ext.P13 which has been pursuant to Ext.P9 judgment of this Court is that possession was already taken and therefore the request for exemption from acquisition cannot be granted. Request if at all can be considered only as a claim for reconveyance. In fact, after saying so, Ext.P13 order goes on to say that the petitioner is not eligible for reconveyance either. 2. The Secretary to the Industries Department was bound by Ext.P9 judgment by this Court. In fact pursuant to Ext.P9, CRL.R.P.12924/2004 2 hearing notice was issued to the petitioner, but it is seen that even before the day scheduled for hearing of the petitioner's representation, the property had been taken from the possession of the petitioner. Mr.Abraham Vakkanal, senior counsel argued that the very passage of the award during the currency of the directions of this Court under Ext.P4 judgment was highly improper. The Government's explanation for passing the award even during the currency of the directions under Ext.P4 is that such a course became necessary for averting the statutory lapsing of the proceedings on account of the expiry of the statutory period provided under Section 11A. This explanation, I am prepared to accept, but, in my view, the respondents could have deferred dispossessing the petitioner till a decision had been taken pursuant to Ext.P9. In the instant case, the governments contention is that possession notice was issued and since there was no positive response that notice possession was taken suo motu by the Land Acquisition Authority. What was done was not proper despite this Court's displeasure at the conduct of the respondents, this Court is not inclined to direct the government to take a fresh decision on the petitioner's claim for exemption from acquisition. Technically, the government is right in CRL.R.P.12924/2004 3 contending that what is now possible is only to treat the petitioner's claim as a claim for reconveyance. The learned senior counsel asserted that despite the mahazar and despite the averments in the counter affidavit, the petitioner continues to be in physical possession But I am unable to accept the submission, since I find that though in the reply affidavit several contentions are raised by the petitioner, it is not seen that the contention of the government that the petitioner has been dispossessed has not been specifically refuted. 3. As already indicated under the impugned order it would appear that the government has disallowed the petitioner's prospective claim for reconveyance. It cannot be in that way. In this case the petitioner had in his favour the directions in Ext.P9 judgment directing the government to reconsider the petitioner's claim for exemption from acquisition. It is absolutely necessary that the claim for reconveyance to be submitted by the petitioner should be considered by the government not on the ordinary parameters which are applied, when persons apply for reconveyance of the properties which are acquired from them. The prospective application to be submitted by the petitioner in this case for reconveyance of the property in respect of which he CRL.R.P.12924/2004 4 claimed exemption should be treated as a special case and should be decided taking into account the various grounds on which the petitioner sought for exemption from acquisition. The petitioner is permitted to apply to the government for reconveyance within one month of the petitioner receiving copy of this judgment. If such an application for reconveyance is received, the government will hear the petitioner on all the grounds which are raised by him including the grounds raised by him in this writ petition and the earlier writ petition in support of his claim for exemption and take a decision. Decision, as directed above, shall be taken by the government within three months of receiving the representation from the petitioner after affording a personal hearing opportunity to the petitioner. It is needless to state that regard should be had while taking decision to Ext.P5 report of the District Collector and any other material or circumstances which may be highlighted before the government by the writ petitioner. Writ Petition is disposed of as above. No costs. PIUS C.KURIAKOSE, JUDGE css/ CRL.R.P.12924/2004 5