IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 WP(C).No. 15871 of 2008(M) -------------------------- PETITIONER(S): --------------- 1. E.VIMALA, AGED 47 YEARS, D/O.KANDANKUTTY, MUPERICHALIL HOUSE, CHERUVADI, KOZHIKODE. 2. SREENIVASAN, S/O.BALAN VAIDHYAR, AGED 46 YEARS, MANCHALIL, POST THIRUVAMPADI, KOZHIKODE. 3. DEVAYANI, D/O.ARUMUGAN, AGED 51 YEARS, THEKKE CHAYAMPURATH HOUSE, KODIYATHUR, CHERUVADI, KOZHIKODE. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, P.W.D., GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, (R & B), PWD, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOZHIKODE. 4. THE SUPDT. ENGINEER (R&B), PWD NORTH CIRCLE, KOZHIKODE. 5. THE SPECIAL TAHSILDAR (LA), KOZHIKODE. 6. THE SECRETARY, KODIYATHUR GRAMA PANCHAYATH, KOZHIKODE. GOVERNMENT PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2008 ALONG WITH WPC NO. 21937 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.15871 OF 2008 PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE LAND TAX RECEIPT OF FIRST PETITIONER. EXT.P2 TRUE COPY OF THE LAND TAX RECEIPT OF SECOND PETITIONER. EXT.P3 TRUE COPY OF THE LAND TAX RECEIPT OF THIRD PETITIONER. EXT.P4 TRUE COPY OF THE BUILDING TAX RECEIPT OF FIRST PETITIONER 'S SHOP. EXT.P5 TRUE COPY OF THE BUILDING TAX RECEIPT OF SECOND PETITIONER'S SHOP. EXT.P6 TRUE COPY OF THE BUILDING TAX RECEIPT OF THIRD PETITIONER'S SHOP. EXT.P7 TRUE COPY OF THE ROUGH SKETCH EXT.P8 TRUE COPY OF THE RELEVANT PAGES OF NOTICE DATED 10-4-07 ISSUED BY THE 5TH RESPONDENT. EXT.P9 TRUE COPY OF THE OBJECTION FILED BY THE FIRST PETITIONER BEFORE THE 5TH RESPONDENT. EXT.P10 TRUE COPY OF THE OBJECTION FILED BY THE SECOND PETITIONER BEFORE THE 5TH RESPONDENT. EXT.P11 TRUE COPY OF THE OBJECTION FILED BY THE THIRD PETITIONER BEFORE THE 5TH RESPONDENT. EXT.P12 TRUE COPY OF THE LETTER DATED 19-11-2007 OF THE EXECUTIVE ENGINEER. EXT.P13 TRUE COPY OF THE SAID LETTER DATED 6-12-07 OF THE ASST. EXECUTIVE ENGINEER. /True Copy/ PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).NOs. 21937/06 & 15871/08 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October , 2008 JUDGMENT In both these writ petitions, the proceedings initiated under the emergency provisions of the Land Acquisition Act for acquisition of properties of the petitioners' who are owners of shop rooms on the sorthern side of Mavoor-Pannikode road are under challenge. The proposal is to widen the existing Mavoor-Pannikode road as a major district road for which minimum width of 15 meters is required. The following are the prayers in the writ petition. “i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to drop the present nature of acquisition for widening the Mavoor-Pannikode road at Chullikkaparambu junction. ii) Call for the records in connection with widening of Mavoor-Pannikode road from the 1st and 2nd respondents and declare that the acquisition proceedings are ultravires. iii) To declare that the respondents are not WPC.No.21937/06 & 15871/08 2 entitled for invoking urgency clause under section 17 of the Land Acquisition Act in the case of widening of Mavoor-Pannikode road at Calicut district. 2. According to the petitioners, the fixation of the alignment of the widened road in the manner presently proposed has been done for suiting one Hameed who owns property to the back side of the petitioners property so that his properties which are presently without road frontage will come to enjoy road frontage. There is a further allegation that acquisition is confined to the sorthern side i.e. petitioners side so that certain other institutions existing on the northern side of the road can be saved. It will be noticed immediately that in the absence of either Sri.Hammed or those institutions ownering building on the northern side of the road , it will be difficult to consider the petitioners' case that the acquisition proceedings are vitiated by malafides. 3. A very detailed counter affidavit has been filed by the Executive Engineer- the fourth respondent answering the various grounds raised and I have heard the submissions of Sri.R.Sudhish, WPC.No.21937/06 & 15871/08 3 learned counsel for the petitioners and those of Sri.Basant Balaji, learned Government Pleader. 4. Sri.Sudhish would submit on the basis of the land acquisition files which is made available for perusal, that there is no justification at all for dispensing with the enquiry under Section 5A. According to him, even after the current notification has been issued, the respondents had been changing the alignment at the instance of interested parties. The learned counsel submitted that there has been no application of mind at all on the part of the concerned while invoking the emergency provisions under section 17(4) and dispensing with enquiry under Section 5A. Learned counsel submits that there is no justification for acquiring properties from the southern side alone. Normally any road widening proposal should involve acquisition from either side of the road. In the instant case that is not what is done. Learned counsel therefore requests that the authority be directed to consider the petitioner's request for refixation of the alignment so that the business carried on in the building, which is the only livelihood, can be salvaged. WPC.No.21937/06 & 15871/08 4 5. Learned Government Pleader drew my attention to the prayers in the writ petitions and submitted that in W.P.(C)No.21937/06 neither the notification under section 4 A nor the order of the Government according administrative sanction or the order of the Land Revenue Commissioner dispensing with enquiry under Section 5A are under challenge. Without challenging them, the prayers sought for cannot be granted. He submitted that in W.P.(C)No. 15871/08, the petitioner has sought for quashing Ext.P8. But Ext.P8 is only a notice under section 4 B and not the notification under section 4(1). In that case also there is no specific challenge against the order of the Land Revenue Commissioner or the sanction of the government for invoking emergency provisions. 6. I have considered the rival submissions as already indicated. It is not possible even to entertain the petitioner's challenge of the proceedings on the ground of malafides in the absence of Hameed and the owners of the building situated on the northern side of the road and without them specifically arrayed as parties and without giving them opportunity to answer the allegations. It would appear as WPC.No.21937/06 & 15871/08 5 if petitioners grievance that only land from the southern side of the existing road is being acquired has some genuineness. But this is what the executive engineer has stated regarding the same in his counter affidavit. “It is denied that there was a proposal for widening the road taking equal land from both the sides i.e.., north and south of Chullikkaparamba portion. In order to get a straight alignment land has to be acquired from southern side of the existing road i.e., from the petitioner side, which is evident from the sketch appended. If the land is taken equally from both sides a straight alignment will not be obtained and so there was no such proposal for equal acquisition from both sides. The sketch produced by the petitioner in which the existing road on either side of the junction at Chullikkapparamba shown as straight is not correct. Original proposal for acquisition itself was to acquire land from southern side only. When LA procedure was started a writ petition was filed by Sri.T.K.Shereff as W.P.(C)No.33593/04 before this court, stay order was also issued which was WPC.No.21937/06 & 15871/08 6 subsequently quashed by this court. The concerned local MLA had convened a meeting at the office of the Executive Engineer in which members of local bodies, political parties and officials have participated. In order to provide relief to the shop owners and tenants it was decided to reduce the proposed land width to 12 meters from 15 meters in town portion of Chullikkapparamba and 18 meters in bell mouth portion. It was also decided to stick on the approved alignment plan for the balance portion. The sole beneficiaries of the reduction by 3 meters are the petitioner as the proposal for land acquisition was from the southern side only. Eventhough the road is named as Mavoor- Pannikode it actually starts from Chullikkaparamba ie., the 0/0 km. The portion Mavoor to Koolimadu actually a part of another P.W.D. road named Manassery-Koolimadu-Mavoor road for which a proposal for widening by land acquisition is existing, and necessary Administrative sanction has already been obtained from Government. Public Works Department has started LA procedure for the same separately. The bridge named Edavazhikadu, its approach road and the stated mosque and shops WPC.No.21937/06 & 15871/08 7 are situated on the western of the Chullikkaparamba junction. The work of this approach road i.e., from Koolimadu to Chullikkaparamba has already been completed with a different approved alignment plan.” 7. It is trite that it is for the requisitioning authority and the acquiring authority-the State to decide on the alignment especially when the alignment is to be fixed in respect of a road. The requisitioning authority has technical expertise and I do not find any reason to turn down the explanation offered by the Executive Engineer through paragraph 3 of the counter affidavit. It is seen that there is no material to accept the case of the petitioners that even after the promulgation of the notification under Section 17(4), the respondents have been changing the alignment now and then. What is discernible from the files is that only once pursuant to the decision taken in a meeting which was convened by the local MLA it was decided to reduce the width of the proposed widened road by 3 meters. It is seen that several shop owners were benefited by such reduction. But unfortunately the petitioners could not derive any benefit from out of WPC.No.21937/06 & 15871/08 8 that. Acquisition of buildings whether they are residential building or building occupied for commercial purposes will inevitably result in heart burn. But when the State is exercising its powers of eminent domain, and when the purpose of acquisition is pre-eminenthly a public purpose what the land owner can aspire for is to have his constitutional right under Article 300 A to have adequate compensation. It should be remembered that right to property is no longer a fundamental right. Learned counsel for the petitioner sought for time to produce the order of the Land Revenue Commissioner so that the same can be challenged by incorporating an amendment to the writ petition. I am not inclined to grant the same since W.P.(C)No. 21937/06 has been pending before this court for about 2 ½ years. Writ petitions will stand dismissed. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.21937/06 & 15871/08 9