IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 OP.No. 30327 of 1999(I) ----------------------- PETITIONER(S): --------------- K.P.ABOOBACKER, 48 YEARS, S/O. AHAMED KOYA, ASTHAS HOUSE P.O., ERANHIPALAM NEAR JAWAHAR COLONY, KOTTARAM ROAD, CALICUT. BY ADV. MR.K.ANAND RESPONDENT(S): --------------- 1. SPECIAL TAHASILDAR, LAND ACQUISITION OFFICER, KOZHIKODE. 2. TOWN PLANNING OFFICER, CORPORATION OF CALICUT. ADDL. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNING DEPARTMENT. ADDL. 4. THE CORPORATION OF CALICUT, REPRESENTED BY ITS SECRETARY. ADDL. 5. THE SECRETARY, CORPORATION OF CALICUT. ADDL. 6. U.G.NAIK, HOUSE NO. 5/2082, THAZHEPUTHIYOTTIL, KOTTARAM ROAD, POST ERANHIPALAM, CALICUT - 6. ADDL. 7. SMT. P.T.RUGMINIAMMA, SANGEETH, HOUSE NO. 5/2081, KOTTARAM ROAD, POST ERANHIPALAM,CALICUT - 6 ADDITIONAL RESPONDENTS 3 TO 7 ARE IMPLEADED AS PER ORDER IN I.A. NO. 11104 OF 2009 DATED 8.9.2009. BY GOVERNMENT PLEADER SMT. N SUDHA DEVI ADVS. MR. C.M.SURESH BABU, SC, MR. PRAVEEN VYASAN ADV. COMMISSIONER MR. V.K.BLACHANRAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 30327 of 1999(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE NOTICE DATED 24.10.1996 ISSUED BY THE 1ST RESPONDENT. EXT.P2 - TRUE COPY OF THE REPLY SUBMITTED BY THE PETITINER BEFORE THE 1ST RESPONDENT DATED 22.11.1996. EXT.P3 - TRUE COPY OF THE NOTICE DATED 11.2.1997 SENT BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P4 - TRUE COPY FO THE REPLY SENT BY THE WIFE OF THE PETITIONER TO THE 1ST RESPONDENT DATED 8.10.1997. EXT.P4(a) - TRUE COPY OF THE SKETCH ATTACHED ALONG WITH EXHIBIT P4 BY THE PETITIONER. EXT.P5 - TRUE COPY OF THE NOTICE DATED 14.10.1999 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P6 - TRUE COPY OF THE NOTICE DATED 25.10.1999 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. RESPONDENTS' EXHIBITS: EXT.R7(A) - TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 4TH RESPONDENT DT. 21.5.1989 EXT.R7(B) - TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE DISTRICT MEDICAL OFFICER CALICUT DATED 14.6.2006. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... O.P. No. 30327 of 1999 ................................................. Dated this the 18th day of November, 2009 J U D G M E N T The petitioner is the owner of a property from which an extent of 0.0081 hectares of land is proposed to be acquired for the construction of a drain. The petitioner objected to the acquisition on the ground that the acquisition is not for a public purpose. However, overruling the objection of the petitioner, proceedings were continued and the land was ordered to be acquired. Award was also published. In the meanwhile, the petitioner filed this original petition challenging the acquisition proceedings on the ground that the acquisition is not for a public purpose and is actuated by malafides insofar as the acquisition is at the instance of some neighbours who are not well disposed towards the petitioner. Counter affidavit has been filed from which it is seen that the acquisition was at the instance of the Calicut Corporation. The Corporation decided to construct a drain in response to a demand from the inhabitants of the locality that since their properties are being flooded during rainy season a drain may be constructed for easy draining of the O.P. No. 30327 of 1999 -2- water. Therefore, in order to find a solution for the problem of flooding of water, Corporation decided to construct a drain, for which purpose only the request for acquisition of 0.0081 hectares of land from the petitioner's property was made. The Government also supports the Corporation's contentions. 2. The petitioner would contend that there is already one drain on the boundary of the property sought to be acquired, constructed by a private party through which water is draining well and at present there is no flooding of water in the locality. Therefore according to the petitioner there is no public purpose involved. 3. In view of the dispute regarding the question of fact involved, a learned judge of this court by order dated 23.1.2009 issued a Commission to ascertain these factual aspects. Pursuant thereto, the Commissioner has filed a report in which in respect of facts to be ascertained, he has filed the following report. Point No.1 Whether there is an already existing drain starting from the public road on the eastern side of the petitioner’s property O.P. No. 30327 of 1999 -3- passing through the property on the southern side of the petitioner’s property and touching the property of the petitioner’s neighbour, the 6th respondent herein, on the western side? On this point, the Commissioner has reported that to the southern side of the petitioner’s property there is a property in which an apartment building is being constructed. By the side of the boundary wall separating the petitioner’s property and the property on the southern side where the building is constructed there exists a fairly recent drain of 1½ ft. depth and 1 ft. width within the property on the southern side. This drain is connected to the road on the western side of the 6th respondent's property and continues through the southern side of the 6th respondent's property by the side of his property and within the compound wall. Rough sketch of the lie of the property is also produced showing the drain. Point No. 2 Whether any part of the property belonging to the 6th respondent has been acquired? The answer to this point by the Commissioner is that there O.P. No. 30327 of 1999 -4- is no external indication of any acquisition from the 6th respondent's property. The Commissioner further reports that there is no other information available to him in that regard. Point No. 3 Whether there is any public drain or canal or pond on the western side of the property of the 6th respondent so as to connect the proposed drainage to be constructed in the petitioner’s property? The Commissioner reports that the entrance to the 6th respondent’s property is connected to a road, which slopes down and ends at the gate of the 6th respondent's property. It is stated that there is no drain, pond or canal there, but the Building Inspector representing the 2nd respondent Corporation told the Commissioner that there is a problem of flooding during monsoon and the flood water which collects there is drained away through the existing drain adjacent to the property sought to be acquired. It is further stated that the drain already existing is immediately adjacent to the area earmarked for acquisition across the boundary wall. It is also stated that even though there is no drain, canal or pond on the western side of the 6th O.P. No. 30327 of 1999 -5- respondent's property, the area being low lying and as the road slopes down, water collected would drain away through the existing drain. It is also the opinion of the Commissioner that even if the drain is made through the petitioner's property which can only serve the purpose of the present drain and it may not do anything more than that. Point No. 4 Whether the entrance to the petitioner's property would be hindered if the property is acquired? The Commissioner states that the width of the petitioner's property at the point where the gate is situated is roughly 12-14 ft. The proposed acquisition according to the petitioner is by the southern side along the entire length of the boundary wall about two feet in width. The Commissioner opines that if the property is acquired as proposed, the passage to the petitioner's property could be reduced by 2 to 3 ft. in width. It is stated in the report that there is an electric post half way into the petitioner's property supplying electricity to the locality on the southern side and apart from the same, reduction in width of the passage by about 2 to 3 ft. would not cause any hindrance to the entrance of O.P. No. 30327 of 1999 -6- the petitioner's property. Point No.5 Whether any public interest or public good will be there if the property of the petitioner is acquired? On this point, the opinion of the Commissioner is that since the purpose of the drain is to prevent flooding in the road leading to the 6th respondent's house, in view of the drain already existing adjacent to the petitioner's property, the construction of which appears to be less than 2 years old, further acquisition may not be necessary at this point of time. However, he cautiously adds that a definite answer as to public interest or good is not possible on the prevailing circumstances. Point No.6 Whether there would be free flow of water from the property of 6th respondent to the drain situated on the eastern side in the public road through to the already existing drain on the southern side of the petitioner's property? The Commissioner reports that the property of the 6th respondent on the west of the petitioner's property is lying at a level of about 1ft. lower than that of the petitioner's and since O.P. No. 30327 of 1999 -7- the water is to flow from the end of the downward slope the water is bound to flow through the present drain to the public drain which runs on the eastern side of the petitioner's property. Point No.7. Whether any drain has been constructed in the 6th respondent's property connecting the drain that is already existing in the southern side of the petitioner's property? The answer of the Commissioner to this question is in the affirmative. According to him, the existing drain is connected to a drain which runs along the southern boundary of the 6th respondent's property and a grill is installed in an opening on the wall of 6th respondent's property so as to facilitate flow of water and to keep out solid wastes. Although the counsel for the Corporation would vehemently contend that the intention of the Corporation is to have a wider drain, in view of the report of the Commissioner, I do not think that there is any necessity for such a big drain in view of the fact that presently there is no difficulty for the water collected to flow through the present drain. Of course the learned counsel for respondents 6 and 7 would submit that such flow of water is O.P. No. 30327 of 1999 -8- through the premises of the person who has constructed the drain for connecting their property to the main drain. I do not think that the owner of the drain can do without the drain in the particular circumstances explained by the Commissioner. Therefore that drain is there for ever. As such the objection of the respondents 6 and 7 also does not find favour with me. The above discussion would without any doubt show that there is no necessity for such a new drain as proposed by the Corporation and therefore there is no public purpose involved in the acquisition of the petitioner's property. Accordingly, it is declared that acquisition is not for a public purpose. Accordingly, the entire acquisition proceedings are quashed. The original petition is allowed. S. SIRI JAGAN, JUDGE rhs