IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 WP(C).No. 34960 of 2009(L) -------------------------- PETITIONER(S): ----------------------- 1. ACHUTHA KURUP, S/O.PARAMESWARAN NAIR, SREEVALSAM, T.C.20/585 (OLD), T.C.48/581, HOUSE NO.E-54, SASTHRI NAGAR, EAST KARAMANA, THIRUVANANTHAPURAM. 2. SARASWATHI AMMA, W/O.ACHUTHA KURUP, SREEVALSAM, T.C.20/585 (OLD), T.C.48/581, HOUSE NO.E-54, SASTHRI NAGAR, EAST KARAMANA, THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.N.P.PRAJEESH RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM. 3. THE SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL), THIRUVANANTHAPURAM. 4. V.G.LATHA, SARAVAN, SOORYA GARDENS, NEDUMCADU, KARAMANA.P.O, THIRUVANANTHAPURAM. 5. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.V.MANU FOR R3 SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R2 SRI.P.K.MANOJKUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.34960/09 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF THE JUDGMENT IN OS NO.139 OF 2003 PASSED BY THE IIND ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM DT 18.6.2004. EXT.P2: TRUE COPY OF THE GAZETTE DT 6.12.2005. EXT.P3: TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER DT. 31.12.2005. EXT.P4: TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT INWPC NO.4649/2006 DT 7.8.2007. EXT.P5: TRUE COPY OF THE REPORT DT.8.4.2008. EXT.P6: TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT DT.10.12.2008. EXT.P7: TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC NO.38019/2008 DT 10.6.2009. EXT.P8: TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT DT 29.10.2009. EXT.P9: TRUE COPY OF THE PLAN SHOWING THE ROADS. EXT.P10: PHOTOGRAPHS SHOWING THE DEMOLISHED COMPOUND WALL. EXT.P10: TRUE COPY OF THE COUNTER AFFIDAVIT DT 27.5.2009 FILED BY THE 2ND RESPONDENT IN WPC NO.38019/2008. EXTS. OF R3 EXT.R3(a): TRUE COPY OF THE DECLARATION NO.LRC(1)-49687/06 DT 30.11.2006 BY ITS GAZETTE DT.2.12.2006. EXT.R3(b): TRUE COPY OF THE OFFICE COPY OF THE NOTICE NO.A1- 1147/05 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS. EXT.R3(c): TRUE COPY OF THE ENDORSEMENT OF THE REVERSED SIDE OF EXT.R3(b) NOTICE EVIDENCING THE AFFIXTURE OF THE FRONT DOOR OF THE PETITIONER'S HOUSE. EXT.R3(d): TRUE COPY OF THE DRAFT AWARD NO.25/08 DT 20.12.2008. WPC NO.34960/09 -2- EXT.R3(e): TRUE COPY OF THE PROCEEDINGS NO.K3/39362/05 DT.20.12.2008. EXT.R3(f): TRUE COPY OF THE NOTICE NO.LAC-29/07 DT 28.11.2007 ISSUED BY THE 3RD RESPONDENT. EXT.R3(g): TRUE COPY OF THE REVERSED SIDE OF EXT.R3(f) NOTICE EVIDENCING THE AFFIXTURE OF THE SAME ON THE PETITIONER'S HOUSE. EXT.R3(h): TRUE COPY OF THE ORDER NO.LRC 1-6569/08 DT.29.10.2009 ISSUED BY THE 5TH RESPONDENT. EXT.R3(i): TRUE COPY OF THE EVICTION MAHAZAR. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 34960 OF 2009 (L) ===================== Dated this the 25th day of March, 2010 J U D G M E N T The prayer sought in the writ petition is to quash Exts.P2 and P8. 2. Petitioners own 14 cents of land in Sy.No.2096/14 of Thirumala Village. Ext.P2 is a notification issued under Section 4 (1) of the Land Acquisition Act dispensing with enquiry under Section 5A for acquiring 0.80 sq.meters of the petitioners' property and the public purpose mentioned is to widen a road. Petitioners objected to the acquisition and eventually filed a writ petition before this Court as WP(C) No.4649/06. By Ext.P4 judgment, that writ petition was disposed of setting aside Ext.P2 to the extent Section 5A enquiry was dispensed with and directed that Section 5A enquiry shall be conducted. 3. Accordingly, enquiry was conducted and Ext.P6 order was passed. That order was again challenged before this Court in WP(C) No.38019/08 and this Court by Ext.P7 judgment directed reconsideration of the matter in the light of Ext.P5 report submitted by the Deputy Collector. The matter was again WPC No. 34960/09 :2 : considered and the decision to proceed with the acquisition was upheld by Ext.P8. It is in these circumstances, the writ petition is filed. 4. Counsel for the petitioners contended that there is no public purpose in the acquisition. It is also his contention that the directions in Ext.P7 judgment have not been complied with. 5. Irrespective of these contentions, from the counter affidavit filed by the respondents, it is now revealed that Section 6 declaration was made on 30/11/2006, a copy of which is Ext.R3 (a). That was published in a gazette dated 2/12/2006. Ext.R3(d) is stated to be the notes of award and draft award was prepared on 20/12/2008, which was approved by the District Collector by Ext.R3(e) dated 20/12/2008 itself. Ext.R3(f) is the notice for taking over possession of the land issued by the 3rd respondent on 28/11/2009, which was served by affixture. This is sought to be proved by Ext.R3(g). It is also stated that the amount awarded as compensation was deposited before the Land Acquisition Court on 11/12/2009. It is further stated that the possession of the WPC No. 34960/09 :3 : property acquired was taken over on 4/12/2009 and Ext.R3(i) is the eviction mahazar. 6. In view of these developments resulting in the passing of the award and taking over of possession of the property, in my view, this Court will not be justified in entertaining the writ petition at this distance of time. This contention of the respondents are sought to be supported by relying on the judgment of the Apex Court in Swaika Properties (P) Ltd. and another v. State of Rajasthan and others {(2008) 4 SCC 695}. 7. Now the acquisition is upheld, what remains is that, as a result of the pendency of this writ petition, the petitioners could not even seek reference under Section 18 of the Land Acquisition Act. Although the learned Government Pleader has raised an objection against allowing the petitioners to make an application under Section 18 of the Act, having regard to the fact that the time prescribed under Section 18 has expired, I feel that ends of justice require that the petitioners should be afforded such an WPC No. 34960/09 :4 : opportunity, as this Court was seized of the challenge against the acquisition proceedings itself. 8. Therefore, I direct that if the petitioners seek reference under Section 18 by making an appropriate application before the 3rd respondent within four weeks from today, the application will be entertained and reference under Section 18 will be made to the appropriate Court. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp