IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 WP(C).No. 4181 of 2008(W) ------------------------------------------ PETITIONER: --------------------- TCS TEXTILES PVT. LTD., 558-560, OPPANAKKARAN STREET, COIMBATORE-641 001, HAVING ITS OFFICE AT: I-B PAUL ABRAVO RESIDENCY (RDS), CHITTOOR ROAD, KACHERIPPADY, KOCHI-682 018, REPRESENTED BY ITS DULY AUTHORISED PROJECT MANAGER. BY ADV. SRI.ANIL GEORGE RESPONDENTS: ------------------------- 1. THE CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, ERNAKULAM, KOCHI-11. *2. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO TRANSPORT DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. *3. THE SECRETARY TO GOVT. LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM * ADDL. R2 AND 3 IMPLEADED VIDE ORDER DATED 5.2.2008. BY ADV. SRI.C.M.SURESH BABU SP/GP ADC. S. RAMESH BABU, SC, COCHIN COPORATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 4181 of 2005 ---------------------------------- Dated this the 25th day of February , 2008 JUDGMENT In this Writ Petition under Article 226 of the Constitution of India, the petitioner company challenges Ext.P4 building permit issued to them by the Corporation of Cochin pursuant to the directions issued by this court in Exts.P1 and Ext.P3 orders. The directions in Exts.P1 and P3 were that subject to the condition that the petitioner will not be entitled for any compensation for the constructions effected pursuant to the permit, if a notification under Section 4 (1) of the Land Acquisition Act is promulgated on or before 31.12.2008, permit as per building rules should be issued. 2. The first respondent Corporation and the additional 3rd respondent – Secretary to the Government, Local Self Government Department have filed separate statements. The stand taken by the Corporation is that the Government had issued letter No.18962/RB-1/07/LSGD dated 16.1.2008 directing the Secretary of the first respondent Corporation to issue permit to the petitioner only on condition of getting concurrence from the District Collector, Ernakulam, who has been authorised by the Government to initiate the land acquisition proceedings to acquire the land in question as per Annexure I Order dated 11.12.2007. The Corporation is bound to abide by the Government's directions, it is stated in the statement. It is further stated that the Government has decided to establish a Metro Rail Project in Kochi City to develop a mass rapid transit system and the Government have already entrusted the project with the Delhi Metro Rail Corporation for implementing the project with equity participation of State Government and Government of India. The project is submitted for clearance and approval. Along with the statement, Annexure I G.O.(Rt) No.550/07 Tran. Dated 11.12.2007 issued by the Government directing the District Collector to initiate urgent action on the acquisition of land including issuance of Section 4(1) notification is produced. It is also stated that pursuant to Annexure 1, the District Collector, Ernakulam, has published a notice dated 17.1.2008 as per Section 6 of the Kerala Survey and Boundaries Act 1961 (Annexure II) informing the owners of the lands required for the project that the survey will be conducted in their properties and they have to render necessary assistance to the officers surveying the land. The statement goes on to say that steps are being taken very earnestly to acquire the land and to implement Metro Railway Project in the city. 3. I have the submissions of Sri.Krishnanunni, the learned senior counsel for the petitioner, Sri.S.Ramesh Babu, the learned Standing Counsel for the Corporation and Sri.C.M.Suresh Babu, the learned Special Government Pleader for respondents 2 and 3. 4. Sri.T.Krishnanunni, the learned senior counsel would argue that Ext.P4 building permit to the extent it incorporates a condition that “the concurrence from the District Collector, Ernakulam who is authorised by the Government to initiate the land acquisition proceedings to acquire the land shall be taken before the commencement of the work” is open violation of the orders of this court in Exts.P1 and P3. Such a condition is absolutely unwarranted by the provisions of the Kerala Municipality Building Rules under which only the building permits are issued by the local authorities. 5. The learned Standing Counsel for the Corporation would submit that the Corporation is bound to abide by the directions issued by the Government and cannot be blamed for having incorporated the condition. The learned Special Government Pleader would submit that all steps have been taken earnestly and speedily for implementation of the Metro Railway Project and ultimately the petitioner will have to demolish and remove the constructions, if any, which he puts up on the strength of the permit. 6. All the submissions of the learned senior counsel for the petitioner were resisted tooth and nail by the learned Government Pleader. I find merits in the submissions of the learned Government Pleader that the petitioner is taking a great risk by proceeding to make constructions even as steps are under way for acquisition of their property. But going by the decision of this court in Padmini v. State of Kerala (1999 (3) KLT 465) , It is possible to say that there is a genuine proposal for acquisition of the petitioner's property only when the Government issues a notification under Section 4 (1) of the Land Acquisition Act. This court has granted time till 31.12.2008 for promulgation of section 4 (1) notification. If the Government comes out with a notification under Section 4(1) of the Act for acquisition of the petitioner's property before 31.12.2008, the petitioner company has to demolish the construction put up by them on the strength of the permit which will inevitably mean very heavy financial loss from the point of view of the petitioner. The learned Counsel for the petitioner submits that the petitioner company is ready to take the risk since they have reason to believe that the Government will not come out with a notification under Section 4 (1) of the Act for acquisition of any portion of their property in the teeth of objections which have now been raised by the traders on M.G.Road and other area in the city. 7. Whatever that be, I have no difficulty to accept the learned senior counsel's arguments that the incorporation of condition No.”4” in Ext.P4 permit (already quoted above ) was not proper. The Writ Petition will stand disposed of deleting the condition number “4” herein above quoted from Ext.P4 and I permit the petitioner to commence and carry out construction on the strength of Ext.P4. But the petitioner is reminded that constructions are at their risk and that it will be their obligation to remove all the constructions put up by them on the strength of Ext.P1 permit if notification under Section 4 (1) is issued by the Government before 31.12.2008. If the petitioner fails to remove the constructions at their cost at the time of taking possession, the respondents will be entitled to remove the constructions at the petitioner's risk as to cost and other consequences. PIUS C. KURIAKOSE, JUDGE. dpk