IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WP(C).No. 19955 of 2006(A) -------------------------- PETITIONER(S): --------------- N.SYED MOHAMMED KOYA, NEDUMTHIRUVE HOUSE, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP. BY ADV. SRI.C.S.ABDUL SAMMAD SRI.V.D.BALAKRISHNA KARTHA RESPONDENT(S): --------------- 1. THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATHI. 2. LAND ACQUISITION COLLECTOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATHI. 3. THE EXECUTIVE ENGINEER, ELECTRICITY DIVISION OFFICE, KAVARATHI. ADV. SRI.SHAFIK M.ABDULKHADIR,SC,LAKSHADWEEP FOR R1 TO 3 SRI.P.R.RAMACHANDRA MENON,SC,LAKSHADWEE FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.19955/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION NO.34/19/2003 – LR DATED 3/10/2003. EXT.P2: COPY OF THE ORDER F.NO.13/15/2000-LR DATED 15/2/2001. EXT.P3: COPY OF THE LETTER F NO.68/8/2001-ELE/1823 DATED 12/5/2005 ISSUED BY THE SECRETARY (POWER) TO DR. P.P.KOYA .M.P. EXT.P4: COPY OF THE LETTER DATED 25/12/2004 FROM THE MEMBER, DISTRICT PANCHAYT, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP TO 1ST RESPONDENT. EXT.P5: COPY OF THE NOTIFICATION F.NO. 34/47/2005 – LR DATED 18/1/2006. EXT.P6: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 16/3/2004 WITH COPY TO 2ND AND 3RD RESPONDENT. EXT.P7; COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 12/7/2004. EXT.P8; COPY OF THE REPRESENTTION DATED 13/12/2004 SUBMITTED BY THE PETITIONER TO 3RD RESPONDENT WITH COPIES TO 1ST AND 2ND RESPONDENTS. EXT.P9: COPY OF THE REPRESENTATION DATED 10/2/2005 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P10: COPY OF THE STATEMENT DATED 21/7/2005 FILED BY PETITIONER'S BROTHER – N KOYA HAJI. EXT.P11: COPY OF ROUGHT SKETCH SHOWING THE AREA. EXT.P12; COPY OF THE LETTER F NO. 34/19/2003 – LR DATED 2/5/2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P13: COPY OF THE LETTER DATED 4/6/2006 SUBMITTED BY THE MEMBER, DISTRICT PANCHAYAT, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP TO THE 1ST RESPONDENT. EXT.P14: COPY OF THE REPRESENTATION DATD 26/6/2006 FROM THE PETITIONER TO THE 2ND RESPONDENT. EXT.P15: COPY OF THE REPRESENTATION DATED 28/6/2006 FROM THE PETITIONER TO THE 1ST RESPONDENT. RESPONDENTS EXHIBITS: EXT.R1(A): COPY OF THE REQUISITION NOTICE F. NO 5/5/91-ELE/AC-1/585 DATED 6/5/2003 ISSUED BY THE IIIRD RESPONDENT. EXT.R1(B): COPY OF THE NOTIFICATION PUBLISHED IN LAKSHADWEEP GAZETTE VOL. XXIX NO. 34 DATED 1/11/2003. EXTR1(C); COPY OF THE NOTICE F.NO. 34/19/2003 – LR DATED 3 /4 / 2004 ISSUED BY THE 11ND RESPONDENT. EXT.R1(D): COPY OF THE COMPENSATION SANCTION ORDER F. NO. 9/5/75 – LR DATED 15/9/1982 ISSUED BY THE SETTLEMENT OFFICER. EXT.R1(E): COPY OF THE REQUEST DATED 10/9/1982 PRODUCED BEFORE THE COLLECTOR CUM DEVELOPMENT COMMISSINER, LAKSHADWEEP. EXT.R1(F) & (G): COPY OF THE NOTICE AND RECEIPT F. NO 34/19/2003 – LR DATED 2/5/2006 ISSUED BY THE 11ND RESPONDENT. EXT.R1(H): COPY OF THE REPORT DATED 12/8/2003 ISSUED BY THE 11ND RESPONDENT. EXT.R1( I ): COPY OF THE LETTER F NO. 22/13/2003 – ASDO (KTN) DATED 3/8/2006 ISSUE DBY THE OFFICE OF THE ASDO ( KILTAN ISLAND) PIUS.C.KURIAKOSE,J. ------------------------ W.P.(C)No.19955 of 2006 ------------------------ Dated this the 26th day of November, 2008 JUDGMENT The petitioner owns 28 sq.metre of land in Survey No.97/1B and his brother Koya Haji owns 102 sq. metres adjoining the above mentioned 28 sq.metres. Notification dated 3/10/2003 under Section 4(1) was issued proposing to acquire the above property extending total of 130 sq.metres. The public purpose mentioned in Ext.P1 is “modification of existing store building constructed by the Department of Electricity at Kiltan Island”. The contention of the petitioner is that the acquisition of his property included in Ext.P1 is no longer necessary since pursuant to the representations submitted by himself and members of the local public, the Lakshadweep Administration has issued subsequent notification Ext.P5 on 18/1/2006 proposing to acquire total extent of 37.30 Ares of land for the purpose of “construction of a new power house building at Kiltan Island”. Relying on Ext.P11 sketch, the petitioner contends that since the power house itself is being shifted, the store building which is a WPC.No. 19955/2006 2 building for storing materials like grease, bearings etc for operating the power house, will also have to be located as near possible to the power house. The prayers, which the petitioner has made in this writ petition, are the following; i) issue a writ of certiorari to set aside Ext.P1 and P12 notification and award, as it is illegal. ii). Direct the respondents not to acquire the land which is required for the construction of this residential building and to consider alternative site owned by the petitioner and expressed his willingness to allot the same. Iii). Declaration the present proposed land is not required by the respondents since the power house is going to be shifted from the present place. 2. A detailed counter affidavit has been filed on behalf of the respondents 1, 2 and 3 and documents Ext.R1(a) to R1(i) have been produced. It is contended that the land acquisition WPC.No. 19955/2006 3 proceedings initiated as per Ext.P1 has attained finality by passage of award and taking over of possession. It is pointed out that possession of the bulk of the property extending to 102 sq. metres has already been taken over from Sri.Koya Haji, the petitioner's elder brother and the full compensation has been paid to him against Ext.R1(i) receipt. Passage of award and taking over of possession of the bulk of the property covered by award gives finality to the acquisition proceedings and the property taken over has become absolute property of the Government. If this court interferes at this stage, it will become necessary to compel the petitioner's brother to pay back compensation which was paid to him so that the Government can reconvey 102 sq.metres taken over from him. The petitioner's brother is not a party to this writ petition and having happily received his portion of compensation under Ext.R1(i), the petitioner's brother will be unwilling to pay back the compensation received by him and take his portion of the property in reconveyance from the Government. The purpose of Ext.P5 acquisition is different from the purpose of Ext.P1 acquisition. WPC.No. 19955/2006 4 3. I have heard submissions of Sri.C.S.Abdul Sammad, learned counsel for the petitioner and Sri. P.R.Ramachandra Menon, learned Standing Counsel for the Lakshadweep Administration . Sri.Abdul Sammad would highlight Ext.P3 letter dated 12/5/2005 sent by the Administration to the Parliament Member representing Lakshadweep and submit that Ext.P5 notification has been issued pursuant to the decision referred to in Ext.P3. He submitted that the decision was to shift the power house and the oil storage and such decision was taken in the wake of public protest regarding the existing of the power house and the generator. Drawing my attention to the judgment of this court in George Joseph v. Union of India (2008 (2) K.L.T 580). Sri.Sammad submits that the petitioner was never afforded a hearing opportunity before the promulgation of Ext.P1 notification. According to him, the petitioner was not given individual notice regarding Ext.P1 either. The publication, as required under statute, has not been made in respect of Ext.P1 and therefore, the award which is apparently passed is vitiated. Counsel lastly submitted that several representations submitted by the petitioner on coming to know about the award are pending WPC.No. 19955/2006 5 before the Administrator and Ext.P15, which is the last one ,is even now pending before the Administration. Counsel appeals that the Administrator be directed to consider Ext.P15 favourably. According to the learned counsel, even without disturbing the award in full (to the extent it pertains to the property belonging to the petitioner's brother), it may be possible for the Administrator to have the construction of the store building confined to 102 sq.metres acquired from the petitioner's brother. 3. Sri. P.R.Ramachandra Menon, learned standing counsel would remind me of narrow contours of this court's powers of judicial review in land acquisition matters. The counsel submitted that even the petitioner does not dispute the public purpose behind Ext.P1 and that the petitioner's request is only that his property may not be acquired and another property to be acquired. Relying on the judgment of the Supreme Court in Suraram Krishna Reddy v. District Collector (2008 (4) KLT SN 33), the learned counsel submitted that there is absolutely no warrant for interference in this case where public purpose of the acquisition is not under challenge and no mala fides or public motives whatsoever are attributed to the authorities while WPC.No. 19955/2006 6 issuing Ext.P5. The learned Standing Counsel further submitted that since acquisition has become final to a considerable extent by taking over of possession of bulk of the property from the petitioner's brother, any interference will result in considerable difficulty for the Administrator. The petitioner's brother will not be willing to take back his property and pay back the compensation received by him. Having considered the rival submissions addressed at the bar in the light of the statutory provisions and law as emerging from the various judicial precedents governing like situations including the judgment of the Supreme Court cited by Sri.Ramachandra Menon, I am of the view that there is absolutely no warrant for interfering under this court's jurisdiction for judicial review over Ext.P1 and proceedings subsequent thereto including the award already passed. At the same time, submission of Sri.Sammad that it may be possible for the Administrator to have the purpose of Ext.P1 notification accomplished by utilising the portion actually taken over from the petitioner's brother (102 Sq.metres) has some appeal. Of course, it is for the requisitioning authority the Electricity WPC.No. 19955/2006 7 Department to take a final decision as to whether their purpose can be accomplished by utilising the portion already taken over from the petitioner's brother. Since Ext.P15 is stated to be pending before the Administrator, even as I decline the relief sought for, I direct the first respondent to take up Ext.P15 immediately, hear the petitioner as well as the 3rd respondent requisitioning authority and take a final decision on Ext.P15. Decision as directed above shall be taken at the earliest and at any rate within six weeks of receiving a copy of this judgment. Till the compliance of the above direction, the order of stay issued in this writ petition will continue. (PIUS.C.KURIAKOSE,JUDGE) dpk