IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 W.A.No.2047 of 2008-E -------------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).20244/2008 DATED 16/09/2008 .................... APPELLANTS/PETITIONERS:- ---------------------------------------- 1. K.K.OMANAKUTTAN, KAIPADAPARAMBIL VEEDU, PERINGARAKAZHA, HMT COLONY P.O., KALAMASSERY, PIN 683503. 2. K.K.RAVEENDRAN NAIR, KAIPADAPARAMBIL VEEDU, PERINGARAKAZHA, HMT COLONY P.O., KALAMASSERY, PIN 683503. BY ADV. SRI.M.RAJASEKHARAN NAYAR RESPONDENTS/RESPONDENTS:- ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM. 2. LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM 695 033. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. THE SPECIAL TAHSILDAR (LA) FOR COCHIN REFINERY LIMITED, VYTTILA, TRIPUNITHURA. 5. KERALA INFRASTRUCTURAL DEVELOPMENT CORPORATION, KINFRA HOUSE, ELANKAM LANE, THIRUVANANTHAPURAM - 695 010, REPRESENTED BY THE MANAGING DIRECTOR. R1 TO R4 BY SR.GOVERNMENT PLEADER SRI.P.K.BABU R5 BY ADV.SRI.G.S.RAGHUNATH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. -------------------------------------------- W.A.No.2047 of 2008-E -------------------------------------------- Dated, this the 23rd October, 2008 JUDGMENT Basheer,J. Appellants are before this Court for the second time challenging the proposed acquisition of their properties at Thrikkakara in Ernakulam District. (2) The Government had issued Exhibit P4 notification under Section 4(1) read with Section 17(4) of the Land Acquisition Act (“Act” for short), proposing to acquire 4.5 acres of land in Thrikkakara North Village on a requisition made by the Kerala Infrastructural Development Corporation (“KINFRA” for short). The KINFRA wanted to construct a link road from the Seaport-Airport Road to the project site in their possession, having an extent of 240 acres at Kalamasserry. The proposal of KINFRA is to establish a High Tech Industrial Park in that land. (3) The lands proposed to be acquired under the notification included 0.4150 Ares of land belonging to the appellants also. Appellants had challenged the notification issued under Sections 4(1) and 17(4) of the Act before this Court in W.P.(C).No.14362 of 2007, raising various contentions. The writ petition was ultimately disposed of by this Court, as is W.A.No.2047 of 2008-E 2 - revealed from Exhibit P6 judgment, with a direction to the Special Tahsildar (Land Acquisition) to conduct an enquiry under Section 5A of the Act, after affording opportunity of hearing to the appellants and the requisitioning authority. (4) It is on record that pursuant to the above direction issued by this Court, the Special Tahsildar had held the enquiry, in the course of which the objections raised by the appellants were considered. Thereupon, the Special Tahsildar had forwarded his report to the Land Revenue Commissioner as provided under Section 5A of the Act. The Land Revenue Commissioner, after considering the report and the entire materials relating to the above acquisition, passed Exhibit P9 order holding that the various contentions raised by the appellants were not sustainable. Consequently, Section 6 notification as provided under Rule 8(5) of the Kerala Land Acquisition Rules (“Rules” for short) was published, a copy of which is on record as Exhibit P10. (5) The appellants filed the present writ petition seeking to quash Exhibit P9 and P10, contending inter alia that the Land Revenue Commissioner had not considered the relevant aspects of the issue in their proper perspective and that the Government was not justified in accepting the proposal made by the requisitioning authority to construct the road as they wanted with a view to save the property of some of the employees of the requisitioning authority. The above contentions were repelled by the learned W.A.No.2047 of 2008-E 3 - Single Judge and the writ petition was dismissed. It is thus that the appellants are before us with this Writ Appeal impugning the order passed by the learned Single Judge. (6) The primary contention raised by the learned counsel for the appellants is that the very purpose for which the requisitioning authority has made a proposal to acquire the land is wholly premature and totally unwarranted. It is contended by the appellants that the Seaport-Airport Road has not yet been constructed and it is not a reality as on today. Therefore, the proposal to construct a link road from the non-existent Seaport-Airport Road to the property belonging to KINFRA, the requisitioning authority, is wholly misconceived and unsustainable. It is further contended that a much shorter and more feasible alignment was available rather than the proposed circuitous route now proposed by KINFRA. The contention of the appellants is that if the said alternate alignment of road as proposed by the appellants is accepted, the road would be much shorter and the property of the appellants and others would not be affected. It may also be noticed that the appellants have also alleged mala fides inasmuch as they contend that the requisitioning authority had chosen the present alignment of the road in order to save the properties of some of the employees of KINFRA. (7) As mentioned earlier, the Special Tahsildar had admittedly conducted an enquiry under Section 5A of the Act pursuant to the direction issued by this Court in Exhibit P6 judgment. It is also not in dispute that the W.A.No.2047 of 2008-E 4 - appellants had submitted an objection statement and argument notes before the Special Tahsildar in the course of the enquiry under Section 5A of the Act. The appellants had admittedly participated in the said enquiry. (8) The Special Tahsildar had forwarded his report after conducting the enquiry to the Land Revenue Commissioner. But, the appellants now contend that the Land Revenue Commissioner had not afforded an opportunity to them to be heard. It is in the above context that the appellants have raised the plea that the contentions urged by them with regard to their objections to the proposed alignment of the road had not been properly adverted to or considered by the Land Revenue Commissioner. In view of the above contention, we had directed the learned Government Pleader to produce the relevant files before us. We have carefully perused the file. (9) We have also gone through Exhibit P9 proceedings of the Land Revenue Commissioner. It is discernible from the file that the Special Tahsildar had forwarded the entire records to the Land Revenue Commissioner. The file also contains the sketch of the proposed alignment of the road as proposed by KINFRA. (10) In Exhibit P9 order, the Land Revenue Commissioner had specifically adverted to each and every objection raised by the appellants. It was noticed by the Land Revenue Commissioner that if the proposal made by the appellants is accepted and consequently if the alignment is changed as W.A.No.2047 of 2008-E 5 - suggested by them, several residential buildings, a shopping complex belonging to Kalamassery Municipality and a temple and temple pond belonging to the Devaswom will have to be acquired. Thus, a perusal of Exhibit P9 order would show that the Land Revenue Commissioner had considered the above objection in its true perspective and with reference to the materials and data available on record. (11) As far as the allegation of mala fides is concerned, there is nothing on record to show that either the requisitioning authority or the acquiring authority had any axe to grind against the appellants. As mentioned earlier, a total extent of 4.5 acres is proposed to be acquired for the purpose of the link road. The properties belonging to several other land owners along with the lands of the appellants are included in the proposed acquisition. No other land owner had raised any objection so far, as pointed out by the learned counsel appearing for the requisitioning authority. It is further pointed out by the learned Standing Counsel that the property belonging to the appellants, which is now proposed to be acquired, is a paddy field, which had not been cultivated for several years. There is no ostensible deviation in the alignment of the road when it reaches the property of the appellants. Suffice it so say, we do not find any material on record, even to hint or to suggest that the properties of the appellants were included by the requisitioning authority or by the acquiring authority with any mala fide or vindictive intention. W.A.No.2047 of 2008-E 6 - (12) Thus, having considered the entire materials available on record, we do not find any reason to interfere with the order passed by the learned Single Judge. A perusal of the records would show that Exhibit P9 order was passed by the Land Revenue Commissioner after considering the entire relevant aspects of the matter elaborately. The Land Acquisition Officer had heard the appellants at the stage of Section 5A enquiry. The Land Revenue Commissioner had re-examined the matter by perusing the file and passed Exhibit P9 order as provided under Section 5A(2) of the Act. Therefore, a further opportunity of hearing before the Land Revenue Commissioner did not arise at all. The Commissioner had passed Exhibit P9 order in compliance with the statutory stipulation contained in Section 5A(2) of the Act. Consequently, Exhibit P10 Declaration under Section 6 was issued. In that view of the matter, we do not find any illegality or irregularity in the procedure adopted by the Land Revenue Commissioner. (13) No other point was raised before us by the appellants. The Writ Appeal fails and it is, accordingly, dismissed. H.L.Dattu Chief Justice A.K.Basheer vku/- Judge