IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 WP(C).No. 10695 of 2007(W) -------------------------- PETITIONERS: ------------ 1. K.BABY, S/O KOCHUKORUTHA, AGED 52 YEARS, RESIDING AT KOODALOOR VEEDU, CHENKULAM MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM. 2. K.MATHEW, S/O KUNCHANDY, AGED 65 YEARS, RESIDING AT PLAVILA PUTHEN VEEDU, KOZHIKODU MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM. 3. V.VARGHESE, S/O.VARGHESE, AGED 70 YEARS, RESIDING AT MANGLAVIL VEEDU, CHEKULAM MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM. 4. THULASEEDHARAN, S/O THANKAPPAN, AGED 48 YEARS, RESIDING AT KUNNUVILA VEEDU,KOZHIKODU MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM. 5. LALY GEORGEKUTTY, W/O.GEORGEKUTTY, AGED 28 YEARS, RESIDING AT PANAVILA PUTHEN VEEDU, KOZHIKODU MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM. 6. SOFIA MATHUKUTTY, W/O MATHEKUTTY, AGED 28 YEARS, RESIDING AT PANAVILA PUTHEN VEEDU, KOZHIKODU MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.K.V.ANIL KUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE, KOLLAM. WP(C)NO.10695/2007 2 3. DEPUTY COLLECTOR(LAND ACQUISITION), COLLECTORATE, KOLLAM. 4. SPECIAL TAHSILDAR(L.A) NO.2(IN-CHARGE), KOTTIYAM, KOLLAM DISTRICT. 5. POOYAPALLY GRAMA PANCHAYAT, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, REPRESENTED BY ITS SECRETARY. R1 TO R4 BY SPL.G.P. SHRI BENNY VARGHESE R5 BY ADV. SRI.B.KRISHNA MANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 SERIES (6 NOS.) COPIES OF THE LAND TAX RECEIPTS ISSUED BY POOYAPPALLY VILLAGE IN FAVOUR OF THE PETITIONERS EXT.P2 COPY OF THE RELEVANT PAGE OF MATHRUBHOOMI DAILY PUBLISHED THE NOTIFICATION NO.C-1928/05 OF THE 4TH RESPONDENT DATED 30.3.2006 EXT.P3 COPY OF THE SKETCH SHOWING THE RELATIVE LOCATION OF THE PETITIONERS' PROPERTIES THE EXISTING ROADS AND THE PROPOSED LINK ROAD, EXT.P4 COPY OF THE MASS PETITION SUBMITTED BY THE PETITIOENRS AND OTHERS TO THE 2ND RESPONDENT DATED 20.3.2006 EXT.P5 COPY OF THE REPORT NO.B7-8457/06 ISSUED BY THE TAHSILDAR, KOTTARAKKARA TALUK DATED 18.9.2006 EXT.P6 COPY OF THE CERTIFIED COPY OF SKETCH PREPARED BY THE VILLAGE OFFICER POOYAPPALLY EXT.P7 COPY OF RELEVANT PAGES OF THE MINUTES OF POOYAPALLY GRAMA PANCHAYAT DATED 30.6.2004 EXT.P8 COPY OF THE LETTER NO.A6/2007 ISSUED BY THE SECRETARY, POOYAPALLY GRAMA PANCHAYAT FSYRF 16.7.2007 RESPONDENTS' EXHIBITS: EXT.R5(a)TRUE COPY OF THE ROUGH SKETCH PREPARED BY A RETIRED FIRST GRADE OVERSEER OF THE PWD EXT.R5(b)TRUE COPY OF THE ANOTHER SKETCH EXT.R5(c) TRUE COPY OF THE RESOLUTION NO.8 DATED 28.2.2003 PASSED BY THE 5TH RESPONDENT EXT.R5(d)TRUE COPY OF THE ANOTHER SKETCH DATED 8.6.2001 ISSUED BY THE VILLAGE OFFICER, POOYAPPALLY EXT.R5(e) TRUE COPY OF ANOTHER SKETCH EXT.R5(f) TRUE COPY OF THE DOCUMENTS SHOWING THE WILLINGNESS TO SURRENDER THE LAND FOR THE PROPOSED ROUTE BY THE 5TH RESPONDENT EXT.R5(g)TRUE COPY OF THE DOCUMENTS SHOWING THE WILLINGNESS TO SURRENDER THE LAND FOR THE PROPOSED ROUTE BY THE 5TH RESPONDENT EXT.R5(h)TRUE COPY OF THE DOCUMENTS SHOWING THE WILLINGNESS TO SURRENDER THE LAND FOR THE PROPOSED ROUTE BY THE 5TH RESPONDENT WP(C)NO.10695/2007 EXT.R5(i)TRUE COPY OF THE DOCUMENTS SHOWING THE WILLINGNESS TO SURRENDER THE LAND FOR THE PROPOSED ROUTE BY THE 5TH RESPONDENT EXT.R5(j)TRUE COPY OF THE ORDER IN IA NO.1005/2006 IN OS NO.141/06 OF THE MUNSIFF'S COURT, KOTTARAKKARA DATED NIL. K. PADMANABHAN NAIR ,J. ------------------------------------------------- W.P.(C) No.10695 of 2007 W ------------------------------------------------- Dated, this the 13th day of March, 2008 JUDGMENT The petitioners are the owners and persons in possession of immovable properties comprised in Sy.Nos.148 and 158 in Block No.35 of Pooyappally Village of Kottarakkara Taluk. They are challenging Ext.P2 notification issued by the fourth respondent under Section 4(1) of the Land Acquisition Act (for short 'the Act') and published in Mathrubhoomi daily dated 30.3.2006 to acquire the lands belonging to the petitioners for the formation of a link road for Pooyappally Grama Panchayat. The proposal is to construct a link road to connect Oyur - Pooyappally road on the south and Thrippan Kavu - Maruthamanpally road on the north. According to the petitioners there is already a Panchayat road connecting these two roads and there is absolutely no need to form another link road. It is averred that the proposed link road will not serve any purpose and many structures are to be demolished and this will not likely to benefit the public. It is also averred that the public in the locality have filed a representation before the District Collector to drop the proceedings. It is further averred that on the representation the District Collector called for a report from the Tahsildar concerned who had forwarded a report to the effect that there is an existing Panchayat way and it is preferable and less expensive to widen the existing WP(C)No.10695/2007 2 Panchayat way than to construct a new link road. It is averred that in spite of these facts the Panchayat is bent upon to proceed with the acquisition. Hence this Writ Petition to quash Ext.P2 notification. 2. Respondents 1 to 3 have not filed any counter. Fourth respondent filed a counter affidavit contending that on receipt of the requisition from the fifth respondent Panchayat steps were taken for acquisition. It is contended that the request in the requisition was to acquire land to form a link road from RPS Junction to Kurisinmood Junction and on receipt of the same Ext.P2 notification was issued. It is also contended that a mass petition was filed before the District Collector against the proposed acquisition. A copy of the petition was forwarded to the fifth respondent for their remarks to which fifth respondent had not given any reply. It is further contended that Government had accorded sanction for construction of link road. It is also contended that Panchayat authorities have not pegmarked the land under acquisition so far in spite of repeated requests and hence further land acquisition steps could not be taken. 3. Secretary of the fifth respondent Panchayat had filed a counter affidavit contending that Section 4(1) notification was published in the Extra Ordinary Gazette dated 1.3.2006 and a notification under Section 6(2) of the Survey and Boundaries Act was published in Gazette dated 8.8.2006 for WP(C)No.10695/2007 3 demarcation and survey of the land under acquisition. It is contended that if petitioners are aggrieved by the notification issued under Section 4(1) of the Act, they ought to have filed their objections under Section 5A of the Act. It is also contended that the proposed acquisition is for the purpose of connecting two main PWD roads namely Oyoor - Kottarakara and Maruthampally - Ambalamkunnu road. It is highly beneficial to the public. It is contended that now to reach Kurisinmood Junction one has to start from RPS Junction reach LPS Kozhikode then Maruthampalli Junction and then to Kurisinmoodu Junction and the distance is more than 3 kms and if the link road is constructed the distance will be less than 500 metres. It is also contended that some of the land owners had expressed their willingness to surrender their land for the purpose of formation of the link road. In the meanwhile, some of the owners of the property proposed to be acquired filed O.S.No.115/2007 before the Munsiff's Court, Kottarakkara and obtained an injunction order. It is further contended that one Jacob Chacko who is the owner of property comprised in R.Sy.Nos.145/3 and 148/4 in Block 35 in Pooyappally Village filed O.S.No.141/2006 before the Munsiff's Court, Kottarakkara and obtained an injunction order. Those orders are still in force. A copy of the injunction order passed in I.A.No.1005/2006 in O.S.No.141/2006 is also produced along with the counter affidavit. The contention that the proposed link road will not serve any benefit to the public is denied. WP(C)No.10695/2007 4 4. Section 4(1) notification was published in the Gazette on 1.3.2006 and the same was published in the Mathrubhoomi Daily dated 30.3.2006. It was published in the notice board of the Village Office on 28.4.2006. In the counter filed by the Government it was stated that in spite of repeated requests, no pegmarking was done and hence no further action could be taken. It is submitted that there was a mistake and erratum notification was issued and it was published in the notice board of the Village Office on 27.6.2006. So the date of last publication of Section 4(1) notification was on 27.6.2006. So in this case Section 6(1) declaration ought to have been made on or before 27.6.2007. But, admittedly in this case no declaration under Section 6(1) of the Act is made till date. So, in the normal course the entire proceedings have lapsed. 5. Learned Government Pleader submitted that from 28.3.2007 there was an interim order passed by this Court which prevented the authorities from proceeding with the acquisition and hence the time is not lapsed. Learned standing counsel for the fifth respondent Panchayat submits that one Jacob Chacko filed O.S.No.141/2006 before the Munsiff's Court, Kottarakkara and in that case he filed I.A.No.1005/2006 for an order of injunction. It is pointed out that learned Munsiff had passed an order of injunction restraining the Panchayat from entering into the property and forming any new road through the property which is operated as a stay of all proceedings in pursuance of Ext.P2 notification. WP(C)No.10695/2007 5 6. Learned counsel for the petitioners submitted that Shri Jacob Chacko passed away and to the knowledge of the petitioners no other persons got themselves impleaded in the suit and as such that suit had abated. I will proceed with the assumption that the suit is still pending and Ext.R5(j) injunction order is still in force. 7. The interim order passed by this Court on 28.3.2007 reads as follows: “There will be an interim stay of dispossession of petitioners pursuant to Ext.P2 notification, for a period of three weeks.” 8. The above stated interim order is still in force. There is no stay of further proceedings to be taken in pursuant to Ext.P2 notification. Land Acquisition Officer could have conducted Section 5A enquiry and issued Section 6 (1) declaration. He could have conducted award enquiry and even passed the award. No such steps were taken. So the respondents cannot be allowed to take shelter under the interim order passed by this Court on 28.3.2007. 9. Now I shall consider the effect of the injunction order passed by the learned Munsiff in I.A.No.1005/2006 in O.S.No.141/2006. A reading of Ext.R5 (j) order shows that there was an order of temporary injunction restraining the WP(C)No.10695/2007 6 Panchayat and one John, S/o.Koshy who is the second defendant in the suit from trespassing into the suit property or from constructing any pathway or road or from interfering with the enjoyment of the property of the plaintiff or from committing any waste in the property. Neither the Land Acquisition Officer nor the State were parties to the suit. There was no stay of any proceedings to be taken in pursuant to Ext.P2 notification. 10. It is submitted by the standing counsel for fifth respondent Panchayat that the statement made by the fourth respondent Land Acquisition Officer that the Panchayat had not pegmarked the land is not correct. It is also submitted that though the Panchayat had pegmarked the properties on 6.3.2006 in the presence of Police, subsequently the survey stones planted were removed. Even assuming that there was an injunction restraining the Panchayat from constructing the link road, there was no injunction restraining the Land Acquisition Officer from acquiring land and constructing a link road. So, merely because there was an injunction order issued by the Munsiff's Court against the fifth respondent Panchayat it is not possible to hold that there was a stay of all proceedings to be taken in pursuant to Ext.P2 notification. 11. The failure to issue Section 6(1) declaration is fatal to the proceedings and all proceedings have lapsed. So the only course open to me is to WP(C)No.10695/2007 7 allow the Writ Petition holding that Ext.P2 notification issued in this case lapsed. I make it clear that I am not considering any of the points raised in the Writ Petition. Those points are left open to be considered in appropriate proceedings. This judgment will not be a bar for the requisitioning authority to make a further requisition and for the State to issue a further notification. If any such notification is issued, it is open to the petitioners to challenge that notification on all or any of the grounds raised in this Writ Petition. Writ Petition is disposed of in the above terms. K. PADMANABHAN NAIR, JUDGE. cks