IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 2709 of 2007(V) ------------------------------------- PETITIONER: ----------------- MRS. VAHIDA NAWAZ, W/O.A.A.MOHAMMED, NAWAZ, AGED 45, B6, BINAMI ZINC COLONY, BINANIPURAM - 683 502. BY ADV. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR SRI.M.C.SEN(SR) RESPONDENTS: ---------------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM. 2. SPECIAL TAHASILDAR (LA), N.H.17, CIVIL STATION, KAKKANAD, ERNAKULAM. 3. MR. SALIM, ENGINEERS COLONY, PERINGARA, TRISSUR. ADDITIONAL RESPONDENT IMPLEADED: ------------------------------------------------------ 4. EXECUTIVE ENGINEER, N.H. (B) DIVISION KODUNGALLOOR. ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 18.7.2007 IN I.A.. NO.9759 OF 2007. BY ADV. SRI.PEEYUS A.KOTTAM SRI.ASHIK K.MOHAMMED ALI BY SR. GOVERNMENT PLEADER SHRI BASANT BALAJI R1, R2 & R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.2709 OF 2007 ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO.1578/1984 OF THE SRO EDAPPALLY. EXHIBIT P2 A TRUE COPY OF THE SALE DEED NO.1773/1984 OF THE SRO EDAPPALLY. EXHIBIT P3 A TRUE COPY OF SECTION 4(1) NOTIFICATION PUBLISHED ON 5.1.2005. EXHIBIT P4 A TRUE COPY OF SECTION 6 DECLARATION PUBLISHED ON 16.2.2006. EXHIBIT P5 A TRUE COPY OF SECTION 9(3) NOTICE DATED 1.12.2006. EXHIBIT P6 A TRUE COPY OF THE COMMON OBJECTION ISSUED BY THE PETITIONER DATED 15.1.2007. EXHIBIT P7 A TRUE COPY OF THE OBJECTION TO SECTION 9(3) NOTICE ISSUED BY THE PETITIONER DATED 15.1.2007. EXHIBIT P8 A TRUE COPY OF THE NOTICE DATED 27.3.2007 ISSUED BY THE SECOND RESPONDENT. RESPONDENTS' EXHIBITS: ------------------------------------- EXHIBIT R4(a) TRUE COPY OF THE LETTER DATED 7.2.2003 SENT BY THE PETITIONER TO THE EXECUTIVE ENGINEER. K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = W.P(C) NO.2709 OF 2007 = = = = = = = = = = = = = = = = = = = Dated this the 25th day of March, 2008 J U D G M E N T -------------------- An extent of 6.04 Ares of land comprised in Sy.No.26/9 of Edappally North Village belonged to the petitioner. An area of 3.98 Ares of land of the said extent was acquired by the respondents for the NH-17 for the purpose of constructing a over bridge at Edappally. Subsequently, Exhibit P3 notification was issued for acquisition of the remaining 2.06 Ares of land. Declaration under Section 6(1) of the Land Acquisition Act was also published. The Writ Petition is filed challenging that notification. It is averred that the notification was issued without observing any formalities and it is bad under law. Petitioner prays that Exhibit P3 and further proceedings in pursuance to that notification may be quashed. There is also a prayer for a direction to the respondents to consider Exhibits P6 and P7 representations. 2. Second respondent Land Acquisition Officer has filed a counter affidavit contending that Section 4(1) W.P(C) NO.2709 OF 2007 -: 2 :- notification was published after observing all formalities and declaration was published within the statutory period. The 4th respondent has filed a counter affidavit contending that initially an area of 3.98 Ares of land from 6.04 Ares of land owned by the petitioner was acquired. It is also contended that petitioner has filed Exhibit R4(a) representation on 7.2.2003 requesting the Land Acquisition Officer to acquire the remaining portion of the land also. It is also stated that the actual necessity of the department regarding this land was only to the extent of 3.98 Ares. But in view of Exhibit R4(a) letter the Executive Engineer forwarded a proposal to the Government for according sanction to acquire the remaining area. Government accorded sanction for acquiring the remaining land and that was acquired. 3. The statements made by the 4th respondent in the counter affidavit show that the actual necessity of the department was only 3.98 Ares of land. But acquisition of the remaining extent of 2.06 Ares of land was included in Exhibit P3 notification only on the strength of Exhibit R4(a) letter written by the petitioner to the Executive Engineer. The W.P(C) NO.2709 OF 2007 -: 3 :- operative portion of Exhibit R4(a) reads as follows: “I humbly request you to compensate me towards injurious affection for the land measuring 0.0206 Hectare and the car shed. Alternatively, please acquire the 0.0206 Hectare of land and the car shed mentioned above also”. 4. It is true that there is a request for acquisition of an extent of 2.06 Ares of land and the car shed situated in that property, by the petitioner to the Executive Engineer. But the same was only an alternate suggestion. The Executive Engineer had written a letter to the Government through the District Collector and the Government had accorded sanction for acquiring the remaining extent of 2.06 Ares of land. But the statement made by the requisitioning authority clearly shows that the requisitioning authority does not require that land for the time being and a proposal was made to the Government only because of the request of the petitioner. If actually the remaining land is required for a public purpose, the Executive Engineer ought to have submitted a requisition in accordance with law before the District Collector and the W.P(C) NO.2709 OF 2007 -: 4 :- the same could have been processed in accordance with law. Though there is a statement in the counter that proposal was made by the Executive Engineer, no such request was produced before this Court. 5. Of course, Section 49(2) of the Act confer power on the Government to acquire remaining portion of the land, which is also the subject matter of acquisition. Section 49(2) of the Act reads as follows: 49. Acquisition of part of house or building:- (1) ..................... (2) If, in the case of any claim under Section 23, sub-section (1) thirdly by a person interested, on account of the severing of the land to be acquired from his other land, the appropriate Government is of opinion that the claim is unreasonable or excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part”. 6. When a portion of the land is acquired and the person makes a claim on account of the injurious affection and if the Government forms an opinion that claim is unreasonable W.P(C) NO.2709 OF 2007 -: 5 :- or excessive, at any time before the Collector has made his award, order acquisition of the remaining portion of the land also. 7. Section 23(1) thirdly of the Act reads as follows: 23. Matters to be considered in determining compensation.- first ............. secondly ............. thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land”. 8. In this case award had already been passed and petitioner received the compensation. So this is not a case falling under Section 49(2) of the Act. Since there is no request in accordance with law, I am of the view that Exhibit P3 notification so far as it relates to the remaining extent of 2.06 Ares of land of the petitioner in this Writ Petition and the subsequent proceedings thereto are bad and are liable to be quashed. W.P(C) NO.2709 OF 2007 -: 6 :- 9. Learned counsel for the petitioner submits that petitioner relinquishes the claim under Section 49(2) of the Act for injurious affection, which is recorded hereby. 10. In the result, Writ Petition is allowed. Exhibit P3 notification and further proceedings thereto in respect of 2.06 Ares of land owned by the petitioner in this Writ Petition are hereby quashed. It is made clear that this judgment will not be a bar for the respondents to acquire the land in question in case a public need arises in future. Interlocutory Application No.5659 of 2007 shall stand dismissed. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. ===================== J U D G M E N T ------------------------------------------- TH MARCH, 2008