IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(C).No. 36203 of 2009(U) -------------------------- PETITIONER(S): --------------- 1. AYYAPPAN, S/O.LATE KUMARA PILLAI, AGED 60 YEARS, 39/804, CHALAI, MANACAUD.P.O, THIRUVANANTHAPURAM. 2. B.SANDHYA SAMBASIVAN, AGED 40 YEARS, W/O.SAMBASIVAN, MAINAKAM, TC 55/2478, VIVEK NAGAR, KAIMANAM, PAPPANAMCODE, THIRUVANANTHAPURAM. 3. A.R.GANESHAN, S/O.LATE RAMASWAMI MOOPPANAR, AGED 55 YEARS, TC 39/1352/3, GANESH BHAVAN, BYPASS ROAD, CHALAI, THIRUVANANTHAPURAM. 4. RAJENDRAN.K ALIAS RAJAN, AGED 43 YEARS, SON OF KUNJIRAMAN, ANANTHAPURI VEEDU, 64/1691, THIRUVALLOM.P.O, THIRUVANANTHAPURAM, AT PRESENT RESIDING AT ANANTHAPURI VEEDU, 43/424, KAMALESWARAM, MANACAUD.P.O, THIRUVANANTHAPURAM. 5. GEETHA RAJAN, AGED 39 YEARS, W/O.RAJAN, -DO- -DO- 6. R.RADHAMANI, W/O.T.RAJAGOPAL, TC 39/1352 (1)(10), CHALAI, MANACAUD.P.O, THIRUVANANTHAPURAM. 7. U.PREMA, W/O.RAJAPPAN.A., TC 41/691, PUTHENKOTTA, MANACAUD.P.O, KURIYATHI, THIRUVANANTHAPURAM. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.K.B.PRADEEP WPC NO.36203/2009 RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, LAND REVENUE, DEPARTMENT OF LAND REVENUE, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE LAND REVENUE COMMISSIONER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 5. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 6. THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY (TRIDA), THIRUVANANTHAPURAM. REPRESENTED BY ITS SECRETARY. 7. THE KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS SENIOR ENVIRONMENTAL ENGINEER, THIRUVANANTHAPURAM. 8. THE TAHSILDAR, ADDITIONAL LAND ACQUISITION UNIT, CIVIL STATION, KUDAPPANAKUNNU, THIRUVANANTHAPURAM. *ADDL.R9. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. *(SUO MOTU IMPLEADED ADDITIONAL 9TH RESPONDENT AS PER ORDER DATED 15/12/2009) ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R9 SRI.P.K.MANOJKUMAR FOR R9 MS.K.R.DEEPA, GOVERNMENT PLEADER FOR R THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.36203 of 2009 (U) --------------------------------- Dated, this the 4th day of March, 2010 J U D G M E N T The prayer sought in the writ petition is to quash Ext.P3 notification issued under Section 4(1) of the Land Acquisition Act. 2. It is stated that proceedings were initiated by the respondents for acquiring 3.8 Hectors of land in various survey numbers of Manakkad Village in Thiruvananthapuram Taluk on the request of the TRIDA for establishing a vegetable market and a shopping complex at Chalai. Administrative sanction for acquisition was accorded by the Government by GO(MS) No.186/79 LA & SWD dated 17/08/1979. Accordingly, the then Board of Revenue passed order dated 31/08/1992 allowing to invoke the urgency clause under Section 17(4) and dispensing with enquiry under Section 5A of the Land Acquisition Act. 3. Subsequently, three awards were passed in 1996. However, award No.2/96 was challenged before this Court in O.P.No.20007/95 on the ground that by the time the award was WP(C) No.36203/2009 -2- passed, the acquisition proceedings had lapsed. This Court by judgment dated 12/02/1997 upheld the contention and invalidated, the acquisition proceedings. Against that judgment, the respondents therein filed W.A.No.1063/97. That writ appeal was disposed of by a Division Bench of this Court by Ext.P1 judgment dated 29/09/1999. 4. It is stated that in the meantime, a portion of the property covered by Award No.2/96 was taken over and was handed over to the requisitioning authority. For acquisition of the remaining 62.22 ares of land, a fresh requisition was issued by the requisitioning authority. Accordingly, on 30/04/2009, Ext.P3 notification under Section 4(1) of the Land Acquisition Act was issued invoking the urgency clause under Section 17(4) on the basis of the Government Order dated 17/08/1979 permitting the same. It is challenging Ext.P3, this writ petition petition has been filed. 5. The first contention raised by learned counsel for the petitioners is that there is no public purpose to acquire the land, and the second is that the invocation of urgency clause is illegal. As far as the plea that the acquisition does not involve a public WP(C) No.36203/2009 -3- purpose, and therefore is bad is concerned, I cannot accept the said contention. Admittedly, the acquisition is for the purpose of establishing a vegetable market and a shopping complex. That itself shows the public purpose behind the project. Further, a portion of the property earmarked has already been acquired. That also justify the acquisition of the balance extent of land. Therefore, I cannot agree with the learned counsel for the petitioners that there is no public purpose behind the acquisition and that therefore, Ext.P3 is illegal. 6. However, I find merit in the contention raised by the learned counsel for the petitioners that invocation of urgency clause under Section 17(4) is illegal. According to the learned counsel for the petitioners, the delay itself belies the case of the respondents that there is urgency in the proceedings justifying dispensing of Section 5A enquiry under the Act. However, the learned senior counsel appearing for the Corporation of Thiruvananthapuram, supported the learned Government Pleader, attempted to justify the invocation of urgency clause. 7. On facts what is seen is that the urgency clause was WP(C) No.36203/2009 -4- allowed to be invoked by Government Order dated 17/08/1979. The award initially passed was set aside by this Court by judgment dated 12/02/1997, which was confirmed in Ext.P1 judgment of the Division Bench. It is almost 10 years after that a fresh Section 4(1) notification is issued, a copy of which is Ext.P3. Apart from the unexplained delay, the statement filed by the respondents shows that there is no separate order passed by the Land Revenue Commissioner under Section 17(4) of the Land Acquisition Act. It has been held by this Court in Prakash M.S. And Others v. State of Kerala and Others (2010 (1) KHC 529) that even if Sections 17(1) & 17 (2) are applicable to an acquisition in question, unless there is application of mind and separate order is passed under Section 17 (4), the enquiry under Section 5A of the Act cannot be dispensed with. Therefore, this necessitates an order under Section 17(4), which is admittedly absent in this case. That apart, the statement also discloses that the files, which led to the order dated 31/08/1992 of the Board of Revenue is misplaced and could not be traced so far. In such circumstances, I am not in a position to uphold Ext.P3 WP(C) No.36203/2009 -5- notification issued under Section 4(1) of the Act to the extent it dispensed with enquiry under Section 5A of the Land Acquisition Act. Therefore, the writ petition is disposed of quashing Ext.P3 in so far as enquiry under Section 5A has been dispensed with to the extent it concerns the property of the petitioners. It is directed that the enquiry under Section 5A will be conducted, and acquisition will be proceeded on that basis. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg