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. 23225 of 2007(M) ---------------------------------------- PETITIONER: ----------------- M/S.KALLARACKAL RESORTS PVT., LTD HAVING ITS CORPORATE OFFICE AT 46/1209 A BOAT JETTY ROAD, VADUTHALA POST, KOCHI-682 023- REPRESENTED BY ITS MANAGING DIRECTOR MR.ROY JOSEPH S/O.K.K.JOSEPH, 47/1881, VADUTHALA, KOCHI-682 023. BY ADV. KRISHNANKUTTY ACHAN(SR.) SRI.C.M.ANDREWS RESPONDENTS: ---------------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE DEPUTY COLLECTOR (A) COLLECTORATE, KAKKANAD ERNAKULAM DISTRICT. 3. THE SPECIAL TAHSILDAR (REVENEUE) (LAND ACQUISITION FOR VALLARPADAM CONTAINER TERMINAL PROJECT) ELOOR, ERNAKULAM DISTRICT. 4. THE CHAIRMAN, COCHIN PORT TRUST WILLINGDON ISLAND, COCHIN-682 003. 5. THE PROJECT DIRECTOR, PIU,COCHIN, NATIONAL HIGH WAY, AUTHORITY OF INDIA, VYTTILA COCHIN-682 019. ADDITIONAL RESPONDENT IMPLEADED ------------------------------------------------------ 6. THE KERALA FINANCIAL CORPORATION, BRANCH OFFICE KOTTAYAM, REPRESENTED BY ITS CHIEF MANAGER, KFC, KOTTAYAM. ADDITIONAL R6 IS IMPLEADED AS PER ORDER DATED 12.3.2008 IN I.A. NO.2594 OF 2008 BY SAENIOR GOVERNMENT PLEADER SHRI D. ANILKUMAR, R1 TO 3 BY ADV. SRI.THOMAS ANTONY SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN SRI.JAMES KURIAN, SC, KFC R6 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. 23225 OF 2007 ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE BROCHURE PUBLISHED BY THE PETITOINER COMPANY REGARDING THE RESORT. EXHIBIT P2 TRUE COPY OF THE SURVEY SKETCH PREPARED BY THE PETITIONER MAKING OUT THE AFFECTED PORTIONS OF THE LAND AND STRUCTURES. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 19.10.2005 SUBMITED BY THE PETITOINER BEFORE THE THIRD RESPONDENT EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 12.12.2005 IN W.P (C) NO.34528/2005 OF THIS HONOURABLE COURT. EXHIBIT P5 TRUE COPY OF COMMUNICATION NO.G32/2006 DATED 1.1.2007 GIVEN BY THE THIRD RESPONDENT TO OTHE PETITIONER. EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 8.2.2007 BEARING NO.G5-265/2007 ISSUED BY THE JOINT DIRECTOR, DEPARTMENT OF TOURISM, ERNAKULAM. EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 5.2.2007 SENT BY THE PETITIONER TO THE FIRST RESPONDENT. EXHIBIT P8 TRUE COPY OF THE LETTER DATED NIL SENT BY THE PETITIONER TO THE SECOND RESPONDENT ALONG WITH EXHIBIT P7 COPY. EXHIBIT P9 TRUE COPY OF LETTER NO.C6/63479/05 DATED 2.5.2007 SENT BY THE FIRST RESPONDENT TO THE PETITIONER. EXHIBIT P10 TRUE COPY OF THE PROPOSAL FOR NEGOTIATED SETTLEMENT DATED 30.6.2007 BEARING NO.KR/GEN/359/07 SUBMITED BY THE PETITIONER TO THE FIRST RESPONDENT. EXHIBIT P11 TRUE COPY OF THE NO OBJECTION CERTIFICATE UNDER REF. NO.E-15/2000 DATED 25.7.2000 ISSUED BY THE KADAMAKUDY GRAMA PANCHAYAT. EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS NO.GOIT/MAS/HTL/APL/2000 (KER)/13 DATED 3.11.2000 OF THE GOVT. OF INDIA, REGIONAL TOURIST OFFICE, CHENNAI. EXHIBIT P13 TRUE COPY OF THE 3 STAR CLASSIFICATION CERTIFICATE DATED 29.1.2003 ISSUED BY THE GOVERNMENT OF INDIA TOURSIM DEPARTMENT, CHENNAI. EXHIBIT P14 TRUE COPY OF THE COMMUNICATION UNDER REF. NO.C.5/2888/03 DATED 11.8.2003 ISSUED BY THE DIRECTOR, KERALA TOURISM DEPARTMENT. EXHIBIT P15 TRUE COPY OF THE BUILDING PLAN APPROVED BY THE KADAMAKUDY GRAMA PANCHAYAT ON 14.6.2000. EXHIBIT P16 TRUE COPY OF THE LICENCE DATED 8.1.2002 FOR RUNNING OF HOTEL AND RESTAURANT ISSUED BY THE PANCHAYAT. EXHIBIT P17. TRUE COPIES OF PAGE NOS.57 AND 58 EXTRACTED FROM THE COASTAL ZONE MANAGEMENT PLAN OF KERALA. EXHIBIT P18 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 21.12.2001 ISSUED BY THE SECRETARY, KADAMAKUDY GRAMA PANCHAYAT. EXHIBIT P19 TRUE COPY OF LETTER NO.11011/5/2000 CF DATED 2.8.2001 ISSUED BY THE NATIONAL HIGHWAY. EXHIBIT P20 TRUE COPY OF THE JUDGMENT DATED 30.10.2000 IN O.P. NO.29415 OF 2000 OF THIS HONOURABLE COURT. EXHIBIT P21 TRUE COPY OF THE JUDGMENT DATED 2.7.2001 IN O.P.. NO.18311 OF 2001 OF THIS HONOURABLE COURT. EXHIBIT P22 TRUE COPY OF THE JUDGMENT DATED 12.10.2001 IN I.A. NO.5638/2001 IN O.S. NO.1405 OF 2001. EXHIBIT P23 TRUE COPY OF THE COMPROMISE PROPOSAL DATED 8.11.2007 SUBMITTED BY THE PETITIONER TO THE CHIEF GENERAL MANAGER, NATIONAL HIGHWAY AUTHORITY OF INDIA. EXHIBIT P24 TRUE COPY OF THE RECEIPT NO.33 DATED 31.1.2008 ISSUED BY THE KADAMAKUDY GRAMA PANCHAYAT. EXHIBIT P25 TRUE COPY OF THE DOCUMENT NO.3036/2002 OF SRO NJARAKKAL. EXHIBIT P26 TRUE COPY OF THE SALE DEED NO.2096/2002. EXHIBIT P27 TRUE COPY OF DOCUMENT NO.1540/2000. EXHIBIT P28 TRUE COPY OF FORM NO.9(B) NOTICE ISSUED UNDER SECTION 9(3) OF THE LAND ACQUISITION ACT. EXHIBIT P29 TRUE COPY OF SKETCH OF THE PROPERTY IN EXHIBIT P7. RESPONDENTS' EXHIBITS: ------------------------------------- EXHIBIT R5(a) A TRUE COPY OF THE CRZ MAP OF KOTHAD PREPARED BY CENTRE FOR EARTH SCIENCE STUDIES, THIRUVANANTHAPURAM. EXHIBIT R5(b) A TRUE PHOTOCOPY OF THE LETTER BY PROJECT DIRECTOR TO THE COCHIN PORT TRUST DTED 28.6.2006. EXHIBIT R5(c) A TRUE PHOTOCOPY OF THE LETER DATED 5.7.2006. EXHIBIT R5(d) DO. DO. DATED 28.7.2006. EXHIBIT R5(e) DO. DO. DTED 1.12.2006. EXHIBIT R5(f) A TRUE PHOTOCOPY OF THE LETTER BY THE 5TH RESPONDENT TO THE PETITIONER DATED 9.12.2006. K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = W.P(C) NO.23225 OF 2007 = = = = = = = = = = = = = = = = = = = Dated this the 25th day of March, 2008 J U D G M E N T -------------------- Petitioner is a company incorporated under the Companies Act which runs a Three Star backwater tourism resort at Kothadu Island, 0.5 KM. away from Chittur Ferry. Petitioner owns a total extent of 4.05 acres of land in various survey numbers of Kadamakkdy Village. According to the petitioner the above land was originally a marshy land and after purchasing the same petitioner made several constructions for the purpose of running a resort and it started functioning on 14.4.2002. It was averred that the total project cost was Rs.14,13,46,051/- and the entire project was financed by Kerala State Financial Corporation and the liability to the KFC as on 31.3.2007 was to the tune of Rs.7,12,39.392/-. On 9.9.2005 the Land Acquisition Officer had issued a Notification under Section 4(1) of the Land Acquisition Act for acquiring a portion of the aforesaid land for the purpose of constructing a 45 metres width bridge through W.P(C) NO.23225 OF 2007 -: 2 :- the resort property. According to the petitioner major portions of the constructions made by the petitioner such as Swimming Pool, Restaurant, Conference Hall, Drinking Water Storage System, etc., have to be demolished. It is averred that by the acquisition there will be severance of the entire holding and the petitioner cannot function the resort with the remaining portions of the land which will completely ruin his business. It was averred that petitioner was entitled to get compensation for injurious affection as provided under Section 23(1) thirdly of the Act. It was averred that in such cases the Government may have either to pay the compensation claimed or acquire the entire land under Section 49(2) of the Act. Hence this Writ Petition for a direction to quash Exhibit P9 and also to issue a direction to the first respondent to refer the matter for determining the question/dispute raised by the petitioner in Exhibit P7 to the Government for decision. Petitioner has also filed Exhibit P8 to the second respondent requesting him not to dispossess the petitioner until a decision is taken. 2. The second respondent has filed a counter affidavit W.P(C) NO.23225 OF 2007 -: 3 :- contending that the requisitioning authority had informed the Land Acquisition Officer that it is not willing to acquire the remaining area. It was also averred that the total land owned by the petitioner is 1.4713 Hectares and only an area of 40.46 Ares of land alone is coming under the acquisition. It was further averred that the percentage of land coming under acquisition from the entire extent comes to 27.5%. The petitioner is the owner in possession of the remaining 72.5% of land. It was also averred that 10 independent buildings are situated in the unacquired land. It was averred that if the remaining land of the petitioner is acquired, the other land owners may also come forward with the same demand. It was also averred that the land so acquired cannot be used for any purpose. It was further averred that Exhibit P7 application was rejected by the second respondent. 3. The fifth respondent has filed a counter affidavit contending that the property owned by the petitioner comes under CRZ 1 of CRZ notification. It was averred that the developmental activities and constructions were made in violation of CRZ notification. It was further stated that the W.P(C) NO.23225 OF 2007 -: 4 :- area under acquisition was only less than 25% of the land owned and possessed by the petitioner and hence the petitioner is not entitled to insist that the entire land should be acquired. It was also stated that the 5th respondent do not require the remaining land as it will be waste of public money. It was further stated that the 5th respondent is not willing to provide funds for acquisition of the entire area. 4. Going by the pleadings, the case of the petitioner is that it is entitled to get compensation for injurious affection. Learned Government Pleader and the Standing Counsel for the 5th respondent have submitted that the entire construction made by the petitioner is in violation of the Coastal Regulation Zone Rules and as such it is not entitled to get any compensation even for the structures already acquired. 5. I do not think it just and proper to decide that issue at this stage. I am of the view that the Writ Petition can be disposed of with a direction to the petitioner to file a petition claiming compensation for injurious affection as provided under Section 23(1) thirdly of the Land Acquisition Act before the Land Acquisition Officer within two weeks from today and W.P(C) NO.23225 OF 2007 -: 5 :- with a further direction to the Land Acquisition Officer to consider and dispose of the same as expeditiously as possible, in accordance with law. In the result, Writ Petition is disposed of permitting the petitioner to file a petition claiming compensation for injurious affection under Section 23(1) thirdly of the Act before the Land Acquisition Officer within two weeks from today. If such an application is received, the same shall be disposed of in accordance with law, within one month from the date of receipt. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. ===================== J U D G M E N T ------------------------------------------- TH MARCH, 2008