IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 WP(C).No. 2673 of 2006(R) -------------------------------------- PETITIONER(S): ------------------------ N.E. THOMAS, P.W.D. CONTRACTOR, NADUBILE THEKKILAKATTIL, P.O. KOTTADY, RAJAPURAM, KASARGOD. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KASARGOD. 3. THE SUB COLLECTOR & REVENUE DIVISIONAL OFFICER, KASARGOD AT KANHANGAD. 4. THE DIRECTOR, AYURVEDA DEPARTMENT, THIRUVANANTHAPURAM. 5. THE DISTRICT MEDICAL OFFICER (I.S.M), OFFICE OF THE DISTRICT MEDICAL OFFICER (I.S.M), KASARGOD. 6. THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE (D) DEPARTMENT, THIRUVANANTHAPURAM. 7. THE COMMISSIONER (LR), THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.2673/2006 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE LETTER DATED 24/10/2002. P2 COPY OF THE LETTER DATED 1/7/2003. P3 COPY OF THE LETTER DATED NIL. P4 COPY OF THE LETTER DATED 28/6/2004. P5 COPY OF THE PROCEEDINGS DATED 19/5/2005. P6 COPY OF THE ORDER DATED 15/7/2005. P7 COPY OF THE ORDER DATED 6/10/2005. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 2673 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18th day of October, 2011. J U D G M E N T The petitioner has, as a good Samaritan, surrendered 25 cents of land in re-survey No. 55/1A in Kallar village, Hosdurg Taluk to the Government for construction of an ayurveda dispensary. The offer was accepted under the Land Relinquishment Act, 1958 and the Government took over the land. But the property surrendered by the petitioner was not used for that purpose and the ayurveda dispensary was constructed in some other property and it has started functioning. The property of the petitioner is still remaining unused. The petitioner requested for return of the land, which is lying idle. The Director of Ayurveda Department reported to the Government that the Department has no objection in releasing the land to the petitioner since the same is not required by the Department. The petitioner's request for return of the land was rejected by the Government by Ext.P7 order on the ground that once land is relinquished under the Land Relinquishment Act, the petitioner has no right over the land and even if the Government has not used the land for constructing an ayurveda dispensary for which the petitioner had relinquished the land, it cannot be returned to the petitioner. The petitioner is challenging Ext.P7 order. 2. According to the petitioner, the land relinquished is like land acquired under the Land Acquisition Act, although in land acquisition, the land is taken over by the Government compulsorily paying compensation, whereas in land relinquishment, the land is surrendered voluntarily without any compensation or consideration. Although, formerly the Supreme Court held the view that even if the land acquired is not used for any public purpose, it cannot be returned to the owner from whom the land was acquired. But the Supreme Court has taken a different view in M/s. Orchid Hotels Limited and another v. G. Jayarama Reddy and others, Civil Appeal No. 7588 of 2005, delivered on 29.9.2011. A copy of the said judgment has been furnished by the learned counsel for the petitioner to the Court. In paragraphs 25 and 26 of the judgment, the Supreme Court has held that where the land owners are deprived of the land under the cover of public purpose and there is diversification of land for a private purpose, it amounts to fraudulent exercise of the power of eminent domine. According to the petitioner, the same should apply to land relinquishments also. It is all the more so when the land relinquishment is without accepting any compensation or consideration and for a specific public purpose. The petitioner also takes the stand that Ext.P7 order has been passed without affording an opportunity of being heard to the petitioner. 3. The learned Government Pleader opposes the prayers. 4. I have considered the rival contentions in detail. 5. I am of opinion that the matter requires more serious consideration and a second look at the hands of the Government. I am also of opinion that on the ground that on land relinquishment, the land vests absolutely with the Government, the Government should not act like private land holders. The Government should not take advantage of public spiritedness of well wishers who are prepared to surrender their lands free of cost for a specific public purpose. From Ext.P7 order, it is clear that the petitioner has surrendered the land for the specific purpose of construction of a Government ayurveda dispensary in Kondotty. Admittedly, the land has not been used for that purpose. It is not disputed before me that the land has not been used for any purpose whatsoever. Therefore, even if the law is in their favour, the Government should exercise their discretion in the matter of return of the land to the petitioner imbibing the spirit in which the petitioner surrendered the land. The petitioner has got a case that before passing Ext.P7, the petitioner was not afforded an opportunity of being heard. Therefore, I am of opinion that the matter should be reconsidered after affording an opportunity of being heard, taking into consideration the observations made by this Court as above. In the above circumstances, Ext.P7 is quashed. The 1st respondent is directed to re-consider the matter, after affording an opportunity of being heard to the petitioner, as expeditiously as possible, at any rate, within 3 months from the date of receipt of a copy of this judgment, taking into account the above observations. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/