IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 5158 of 2009(L) ------------------------- PETITIONERS: --------------- 1. THANSEEHUL ISLAM CHARITABLE TRUST, REP. BY ITS SECRETARY V.K SHAHUL HAMEED, S/O. MOHAMMADUNNI AGED 64 YEARS, P.O. MADU, PIN 680 512, TRICHUR DIST. 2. THEKKERAKATH SHARAFUDHEEN, S/O. ABDUL KAREEM AGED 31 YEARS, P.O. KADAPPURAM, PIN 680 514, TRICHUR DISTRICT. 3. KUNHI BEEVI, W/O. SAIDALI, AGED ABOUT 92 YEARS, P.O. KADAPPURAM, PIN 680 514, TRICHRU DISTRICT. 4. PUTHIYA VEETTIL CHALI PENKU, AGED ABOUT 50 YEARS, W/O. BEERAN SAHIB, P.O. KADAPPURAM -14,TRICHUR DIST. 5. FAZAL, AGED 27 YEARS, S/O. BEERAN SAHIB, P.O. KADAPPURAM -14, TRICHUR DISTRICT. 6. FAIZAL AGED 25 YEARS, S/O. BEERAN SAHIB, P.O. KADAPPURAM, PIN 680 514, TRICHUR DISTRICT. 7. FAIZA, AGED ABOUT 20 YEARS, D/O. BEERAN SAHIB, P.O. KADAPPURAM -14, TRICHUR DIST. 8. VALIYA PURACKAL BEERAN AGED 61, YEARS, S/O. KUNHIKOYA, PIN 680 514, TRICHUR DIST. 9. ABDUL GAFOOR KP, AGED 52 YEARS, S/O. ABDUNNI MASTER, KURIKALATH PULICHARAM VEETTIL P.O. MADU, PIN 680 512, TRICHUR DIST. WP(C).No. 5158 of 2009 10. PADINJAREPURACKAL ALEEMA, AGED 48 YEARS W/O. ASAINARAKATH ABDULLA MON, P.O. KADAPPURAM, PIN 680 514, TRICHUR DISTRICT. BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI. RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNEMNT, REVENUE DEPARTMENT SECRETARIAT, THIRUVANANTHPURAM. 2. THE COMMISSIONER LAND REVENUE THIRUVANANTHAPURAM. 3. THE DISTICT COLLECTOR, TRICHUR DISTRICT. 4. THE SPECIAL TAHSILDAR LAND ACQUSITION (GENERAL), TRICHUR DISTRICT. 5. THE VILLAGE OFFICER, KADAPPURAM VILLAGE KADAPPURAM P.O., TRICHUR DISTRICT. GOVERNMENT PLEADER, SRI.K.V.MANOJ KUMAR FOR R3-R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5158 of 2009 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE TITLE DEED OF THE 1ST PETITIONER SOCIETY. EXT.P2; COPY OF THE NOTIFICATION NO.F.187/2008 DT.13.11.2008 PUBLISHED BY THE GOVERNMENT. EXT.P3: COPY OF THE NOTIFICATION NO.F51/09 DT.24.1.2009 PUBLISHED BY THE GOVERNEMNT. EXT.P4: COPY OF THE NOTIFICATION NO.LRC 3-55152/2008 DT.12.12.2008. EXT.P5: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT. EXT.P6: COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER AND OTHERS BEFORE THE 4TH RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION SUBMITTED BY THE 9TH PETITIONER BEFORE THE 4TH RESPONDENT. EXT.P8: COPY OF THE TAX RECEIPT NO.88/2 ISSUED TO THE PETITIONERS 4 TO 7. EXT.P9: COPY OF THE MASS REPRESENTATION SUBMITTED TO THE PRESIDENT OF THE KADAPPURAM PANCHAYAT. EXT.P10: PHOTOGRAPHS SHOWING AN IDEA OF THE LIE OF PROPERTIES SOUGHT TO BE ACQUIRED. EXT.P11: NO.E1-/8019/09 DT.13.2.2009 RECEIVED BY THE 1ST PETITIONER FROM STATE PUBLIC INFORMATION OFFICER, THRISSUR. RESPONDENT'S EXTS: EXT.R3(a): COPY OF THE LISTS OF PERSONS TO WHOM PATTAS ISSUED. EXT.R3(b): COPY OF THE GUIDELINES. EXT.R3(c): COPY OF THE B.T.REGISTER IN RESPECT OF R.S.No.148-1 and 86. EXT.R3(d): COPY OF COMMUNICATION RECEIVED FROM THE KERALA STATE HOUSING BOARD, THRISSUR DIVISION. EXT.R4(a): G.O.(Rt) NO.3440/2007/DMD dated 9.8.2007. EXT.R4(b): TSUNAMI REHABILITATION PROGRAMME : GUIDELINES. EXT.R4(c): GOVT.LR.NO.57869/TRPC2/2007/DMD DATED 17.11.2008 K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. -------------------------------------- W.P.(C) No. 5158 OF 2009 -------------------------------------- Dated this the 22nd day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioners are owners of various extents of land in Kadappuram village of Chavakkad Taluk in Thrissur District. The 1st petitioner is a Charitable Trust and petitioners 2 to 10 are individuals, whose properties are sought to be acquired by the State. Ext.P2 dated 13.11.2008 is the notification issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), as per which, 2.0996 Hectares of land is sought to be acquired from Survey No.86 and 0.8099 Hectares from Survey No.148/1A1 Part. Ext.P3 is the notice dated 24.1.2009 issued under Section 9(3) of the Act to the land owners. The land was acquired invoking the provisions of Section 17(4) dispensing with the enquiry under Section 5A. Ext.P4 is the declaration made by the Land Revenue Commissioner under Section 6 of the Act on 12.12.2008. It preceded Ext.P3 notice. The petitioners W.P.(C) No.5158/2009 2 submitted Exts.P5 to Ext.P7 representations before the Land Acquisition Tahsildar pointing out their grievances against the acquisition. It was followed by Ext.P9 representation before the President of Kadappuram Grama Panchayat. Copies of it were sent to the Revenue Divisional Officer, the District Collector and the Government. The petitioners have produced Ext.P10 photographs to show that the land sought to be acquired is a coconut garden with several streams through it. The Writ Petition was filed seeking the following relief: “Issue a writ of certiorari or any other writ quashing Exhibits P2 to P4 notifications proposing to acquire the petitioner's property as the proceedings are unconstitutional.” 2. Subsequently, the petitioners have filed I.A.No.2973/2009 producing Ext.P11 communication dated 13.2.2009 received from the State Public Information Officer and Junior Superintendent of Collectorate, Thrissur. The said communication furnished copies of a letter addressed by the Executive Engineer, Kerala State Housing Board to the District Collector, concerning the nature of the properties proposed to be W.P.(C) No.5158/2009 3 acquired. Regarding the properties in Kadappuram Village, the said communication would show that there is a thodu and chira on the eastern and western side and that the area is not suitable for construction. A culvert has to be constructed to have access to the road. Certain other thodus are in the balance area, of which, some have to be maintained. Soil is clay mixed with sand. Water table is 0.5 metre below the ground level. Draining of water will be needed during wet season for construction, which will affect the cost of foundation. The said report is concluded with an observation that it is difficult to get land without thodu in it. In sites, where chall, thodu etc. are existing, additional cost will be needed to fill up and maintain them, as the case may be, and provide culverts. There is another communication of the Executive Engineer to the District Collector dated 12.11.2008, produced along with Ext.P11, which would show that the areas identified in Kadappuram and Wemballur Villages are not suitable for construction as they exist now. But, they can be made suitable by executing extra development works, such as earth strengthening works, which involve additional expenditure. The petitioners filed I.A.No.3536/2009 to receive an additional W.P.(C) No.5158/2009 4 affidavit, wherein it is stated that the 1st petitioner is intending to set up an educational institution in the land, proposed to be acquired, for the benefit of socially and economically backward sections of the local Muslim community. In the Writ Petition, the main ground raised by the petitioners was that the urgency clause has been invoked without any justification. The land is not suitable for constructing residential buildings. Further, it is covered by CRZ notification. They have also a contention that the land of the petitioners is sought to be acquired for political reasons. They are members of a party in the opposition and therefore, at the instance of a prominent ruling party, they are being harassed by acquiring their land. 3. Dealing with the averments in the Writ Petition, the State filed a counter affidavit. According to the State, the land was identified by the Housing Board in consultation with the local body and other persons interested. Section 4(1) notification was published in the Gazette dated 10.11.2008. Section 6 declaration was published in the Gazette dated 30.12.2008. Notice under Section 9(1) was published in the W.P.(C) No.5158/2009 5 Village Office, Kadappuram, on 28.1.2009. Notice under Section 9(3) for award enquiry was issued and the award enquiry was conducted on 16.2.2009. Now, it is submitted that the award is also passed on 28.2.2009. It is pointed out that the land is acquired not to rehabilitate any person hit by Tsunami. The Tsunami Rehabilitation Programme is a Scheme to resettle all persons, who are residing in vulnerable areas on the sea coast. Ext.R4(a) order issued by the Government on 9.8.2007 gives the details of the Tsunami Rehabilitation Scheme. Ext.R4(b) gives further details regarding the Scheme. Regarding the identification of the land and invocation of emergency clause, it is submitted in the counter affidavit as follows: “8. “The Tahsildar, Chavakkad, who is the requisitioning authority, has submitted proposal to acquire the said land. The Secretary of the Kadappuram Gramapanchayath has also informed that there is no other land suitable for the rehabilitation. The land was identified after a joint inspection with the officials of Kerala State Housing Board. As per G.O.(Rt) No.2959/2008/DMD dated 18.09.08, Government have accorded sanction for the acquisition of the above land. Subsequently, the Land Revenue Commissioner accorded W.P.(C) No.5158/2009 6 sanction for invoking urgency clause under Section 17(4) on 18.10.08 as per proceedings No.LRC3-43002/08. On the basis of the requisition received from the Tahsildar, Chavakkad, the Land Acquisition Officer initiated LA proceedings and published statutory notification. The Secretary of the Kadappuram Gramapanchayah has also informed that there is no other land suitable for the rehabilitation.” The allegations of malafide raised against the acquisition were also denied in the counter affidavit. They also submitted that the land acquired was beyond 500 metres from the High Tide Line. 4. In view of the above averments, the petitioners filed I.A.No.7299/2009 to apoint an advocate commissioner to inspect the land proposed to be acquired and file a report before this Court with special reference to the distance of the land from the sea. The said application was allowed and the Advocate Commissioner filed a report before this Court on 24.6.2009. The Commissioner has stated that the land proposed to be acquired starts from a distance of 342 metres from the sea shore. The Commissioner has also reported that there are about 100 small W.P.(C) No.5158/2009 7 streams in the property. The 3rd respondent has filed a counter affidavit on 27.6.2009 dealing with the Commissioner's report. According to the 3rd respondent, the Commissioner has measured the distance from the sea wall. There is a distance of 200 metres between the High Tide Line and the sea wall. The said land is assigned to various persons. A list of such persons has been produced as Ext.R3(a). The 3rd respondent also submitted that going by CRZ notification concerning the CRZ-III area, construction is prohibited only within 200 metres. Between 200 metres and 500 metres from the High Tide Line construction can be made for the benefit of Fishermen Community. According to them, out of the 224 beneficiaries, 126 are fishermen and therefore, they can be settled in the area between 200 metres and 500 metres from the High Tide Line. The 3rd respondent has also filed an additional affidavit asserting that the area sought to be acquired is not a wet land but is a thottam (plantation), wherein coconut trees aged about 25 to 30 years are growing. There are several drainage channels in the said coconut garden and two streams. Those two streams will be protected when construction is undertaken. W.P.(C) No.5158/2009 8 5. The petitioners have filed two reply affidavits dealing with the above two affidavits filed by the 3rd respondent. They submitted that the construction, if any, between 200 metres and 500 metres will be hit by the CRZ-III Regulations. Exemption is available only to existing fishing villages and not for a developmental activity contemplated by the respondents. 6. We heard the learned senior counsel, Smt.Sumathy Dandapani, for the writ petitioners. We also heard the learned Government Pleader for the respondents. Learned senior counsel reiterated the aforementioned contentions of the petitioners, which we have already noticed above. It is further pointed out that in the first counter affidavit filed by the State, their specific case was that the area sought to be acquired is beyond 500 metres. When the said submission was disproved by the Commissioner's report, now, other contentions such as construction between 200 metres and 500 metres from the High Tide Line is permissible are taken. So, this Court may ignore those contentions. Further, it is pointed out that construction/ reconstruction is permissible within 200 metres and 500 metres W.P.(C) No.5158/2009 9 from the High Tide Line only for existing fishermen villages. In fact, in the above area there is no such fishermen village. Therefore, even if, the land is acquired the same cannot be put to use in view of the restrictions under the CRZ-III notification. 7. The learned Government Pleader submitted that the land can be put to traditional use like housing for fishermen etc. The necessity of the existence of a fishing village is not contemplated under the conditions under the CRZ-III notification. The learned Government Pleader also pointed out that the distance of 342 kms pointed out by the Commissioner is the starting point of the first item of the property. The eastern boundary of that property itself goes beyond 500 metres. Even assuming, the measurement made from the sea wall by the Commissioner is correct, other items of properties are well beyond 500 metres, it is submitted. The learned Government Pleader also submitted that as per the Scheme, the fishermen has to be accommodated within 500 metres. So, 126 fishermen, who are beneficiaries of the Scheme, will be accommodated within the area covered between 200 metres and 500 metres W.P.(C) No.5158/2009 10 from the High Tide Line, it is submitted. 8. We considered the rival submissions made at the Bar and also went through the pleadings and materials on record. The invocation of the emergency clause under Section 17(4) for acquiring other lands under the Tsunami Rehabilitation Programme has already been upheld by this Court in several decisions. One of them is W.P.(C) No.181/2009. As per the original plan, the Scheme was to be completed by 31.3.2009. But, on the request of the State Government, the Central Government extended the time for acquisition up to 30.6.2009 and completion of the scheme up to 31.12.2009. In view of the time constraint, it was submitted that the emergency clause was invoked. Accepting the above submission, this Court has dismissed the challenge made in other writ petitions concerning invocation of emergency clause. The petitioners submitted that only for political reasons their properties were acquired. The respondents in their counter affidavits have denied that allegation. The allegations relating to malafidies are easily raised, but it is difficult to sustain them. In the absence of any W.P.(C) No.5158/2009 11 reliable materials, this Court is not justified in acting upon the mere assertion of the petitioners on the above point. The main point canvassed before us was the violation of CRZ-III notification. Special reference was made to paragraph 3 thereof, which reads as follows: “(iii) Construction/reconstruction of dwelling units between 200 and 500 metres of the High Tide Line permitted so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and gaothans. Building permission for such construction/reconstruction will be subject to the conditions that the total number of dwelling units shall not be more than twice the number of existing units; total covered area on all floors shall not exceed 33 percent of the plot size; the overall height of construction shall not exceed 9 metres and construction shall not be more than 2 floors ground floor plus one floor. Construction is allowed for permissible activities under the notification including facilities essential for such activities. An authority designated by State Government/Union Territory Administration may permit construction of public rain shelters, community toilets, water supply, drainage, sewerage, roads and bridges. The said authority may also permit construction of schools and dispensaries, for local inhabitants of the area, for those W.P.(C) No.5158/2009 12 panchayats the major part of which falls within CRZ if no other area is available for construction of such facilities.” 9. The learned senior counsel submitted that construction/ reconstruction of dwelling units is permissible only for existing fishing villages and gaothans. But, on the other hand, the respondents pointed out that the construction is permissible, if the same is within the ambit of traditional rights and customary uses. The learned Government Pleader also pointed out that the distance if measured from the High Tide Line, the entire land sought to be acquired is beyond 500 metres. A portion of the land happened to be within 342 metres and 500 metres as the Commissioner measured the land from the sea wall. We feel that the measurement of the land from the sea wall has been correctly made. Sea wall is constructed to prevent the impact of high waves during high tides and inclement weather in the monsoon. No authority in its senses will construct sea wall, where the waves do not reach. Though persons might have been assigned the land between the water and the sea wall, we think that the correct factual position is, what is pointed out by the W.P.(C) No.5158/2009 13 writ petitioners that those owners were never able to occupy the land, but they are paying the land revenue under the fond hope that the water may sometime recede and they will be ready to occupy the land assigned to them. Since the acquired land from 342 metres from the sea wall, upto 500 metres can be used for settling fishermen among the beneficiaries, going by the terms of the above quoted clause of CRZ-III, construction/ reconstruction of dwelling units for customary uses like residence etc., is permissible. Construction of residential units cannot be termed as something done in violation of traditional rights or against customary uses. So, the contention that the land, even if, acquired cannot be put to use, in view of violation of CRZ-III conditions, cannot be accepted. In the result, the Writ Petition fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps