IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 6TH NOVEMBER 2007 / 15TH KARTHIKA 1929 WP(C).No. 12526 of 2007(N) -------------------------- PETITIONER: ----------------- R.S.MOIDEEN, S/O. SAITHALIKUTTY, RAYAM MARAKKAR HOUSE, ENAMAKKAL, THRISSUR, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, RESIYA MOIDEEN, AGED 46 YEARS, W/O. R.S.MOIDEEN, R.S.GARDENS, ENAMAKKAL, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SMT.K.S.CHANDRIKA RESPONDENTS: --------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (B) DEPARTMENT, THIRUVANANTHAPURAM. 3. THE COMMISSIONER, LAND REVENUE COMMISSIONERATE, THIRUVANANTHAPURAM. 4. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVT. (M) DEPARTMENT, THIRUVANANTHAPURAM. 5. THE DISTRICT COLLECTOR, THRISSUR. 6. THE TAHSILDAR, CHAVAKKAD. 7. THE SPECIAL TAHSILDAR (L.A.) AND LAND ACQUISITION OFFICER, THRISSUR MUNICIPALITY, THRISSUR. 8. ELAVALLY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ELAVALLY, THRISSUR. BY GOVERNMENT PLEADER SHRI BASANT BALAJI R1 TO 7 BY ADV. SRI.T.A.RAJAGOPALAN R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2007, ALONG WITH WPC NO. 13182 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO. 12526 OF 2007 ---------------------------------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER ON 10.11.2006. EXHIBIT P2 TRUE COPY OF THE SALE DEED NO. 631/01 DATED 24.3.2003 OFS.R.O. MULLASSERY EXHIBIT P2(a) TRUE COPY OF THE SALE DEED NO.707/01 DATED 5.4.2001 OF THE S.R.O. MULLASSRRY. EXHIBIT P3 TRUE COPY OF THE LETTER NO.9137/B2/2005/RD DATED 2.2.2005 OF THE 2ND RESPONDENT SENT TO THE 5TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REPORT NO.C-2-9387/05 DATED 30.4.2005 OF THE 6TH RESPONDENT SENT TO THE 5TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 30.5.2005 PREFERRED BY THE PETITIONER BEFORE THE 5TH RESPONDNT. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 16.12.2005 PREFERRED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER, LOCAL SELF GOVT. DEPARTMENT. EXHIBIT P7 TRUE COPY OF THE GAZETTE NOTIFICATION NO.A2/752/04 PUBLISHED ON 16.1.2006. EXHIBIT P8 TRUE COPY OF THE LETTER A2-752/04 DATED 21.6.2006 OF THE 7TH RESPONDENT. EXHIBIT P9 TRUE COPY OF THE GAZETTE NOTIFICATION NO.LRC-3- 1458/07 DATED 7.3.2007. RESPONDENTS' EXHIBITS: ------------------------------------- “C.R” K. PADMANABHAN NAIR ,J. ------------------------------------------------- W.P.(C) Nos.12526 of 2007 N & 13182 of 2007 T ------------------------------------------------- Dated, this the 6th day of November, 2007 JUDGMENT Petitioners are challenging notification under Section 4(1) of the Kerala Land Acquisition Act (for short 'the Act') and declaration under Section 6(1)of the Act. The land owned by the petitioners were sought to be acquired for the construction of an autorickshaw stand. According to the petitioners the Panchayat has no source of funds. The need projected is not a public purpose. Section 227 of the Kerala Panchayat Raj Act provides that Panchayat may provide landing places, halting places and cart stand (including stand for animals and vehicles of any description) and levy fees for their use. Construction of autorickshaw stand is a public purpose. It is also averred that the sixth respondent has forwarded a report to the fifth respondent stating that this land is not fit for constructing an autorickshaw stand. Whether the land proposed to be acquired is fit for starting an autorickshaw stand, etc. are matters to be considered by the requisitioning authority. It is pointed out that Section 4(1) notification was issued on 16.1.2006 whereas Section 6(1) declaration was issued only on 9.3.2007, after the expiry of one year from Section 4(1) notification and hence the entire proceedings lapsed. It is contended that so far as the area covered by erstwhile Malabar is concerned WP(C) Nos.12526 & 13182/2007 -: 2 :- the provisions of the Central Act is not applicable and the land acquisition can be initiated only under the provisions of the Kerala Land Acquisition Act, 1961. 2. Respondents 7 and 8 filed counter affidavits stating that notice was published in the newspaper on 19.1.2006 and also on 21.1.2006 and the same was published in the locality on 13.3.2006. It was averred that Section 6(1) declaration was issued on 7.3.2007 which is within one year from the date of last publication. It is trite law that when the Statute prescribes different modes of publication the time begins to run from the last publication. In this case Section 4 (1) notification was published in the locality on 13.3.2006. Section 6(1) declaration was made on 7.3.2006. So there is no merit in the contention raised that the proceedings lapsed. 3. It is argued that the State cannot invoke the provisions of the Land Acquisition Act, 1984 so far as the erstwhile Malabar area is concerned. It is argued that the land acquisition is included in Entry 42 in List III of the Seventh Schedule. It is contended that when the State Legislature passed the Land Acquisition Act, 1961 assent of the President was obtained. So the provisions of that Act will prevail over the provisions of the Central Act so far as the erstwhile Malabar area is concerned. The very same question was considered in Kanthimathy Plantation (P) Ltd. v. State of Kerala ((1989) 4 SCC 650) in which it was held that the provisions of Central Act will apply. It was held as follows: WP(C) Nos.12526 & 13182/2007 -: 3 :- “The Amending Act of 1984 has been made in exercise of legislative power vested in the Centre by Entry 42 in the Concurrent List. There was a State Act in Kerala known as the Kerala Land Acquisition Act of 1961 which dealt with acquisition and that had been legislated on the basis of the same Entry 42. Under the Amending Act of 1984, the Land Acquisition Act of 1894 was substantially amended. Five new provisions were inserted; twenty-one sections were substantially altered; one section was substituted and another was omitted. The Act of 1984 extended the Land Acquisition Act of 1894 to the whole of India excepting the State of Jammu and Kashmir. The provisions were substantially different from the provisions in the Kerala Act. In view of the fact that the Land Acquisition Act of 1894 was extended to the whole of India excepting one State, the Land Acquisition Act of 1894 became applicable to the State of Kerala and in view of the repugnant provisions, in terms of Article 254 of the Constitution the Kerala Act stood repealed. There is no provision made in the Amending Act to indicate repeal of the State law but application of Article 254 is automatic to situations where it is applicable and by the operation of the Article the State Act stood repealed and the Central Act became applicable.” So there is no merit in the argument raised by the counsel for the petitioners that no notification can be issued under the Central Act in respect of any land which will come within the erstwhile Malabar area.. There is no merit in the Writ Petitions and the same are only to be dismissed. 4. Learned counsel appearing for the petitioner in W.P.(C) No.13182/2007 submits that there is a building in the property sought to be acquired and the attempt of the requisitioning authority as well as Land WP(C) Nos.12526 & 13182/2007 -: 4 :- Acquisition Authority is to acquire the land without paying any compensation for that building. It goes without saying that if there is any structure in the land proposed to be acquired the value of the same shall be assessed by the Land Acquisition Officer in accordance with law and thereafter a decision may be taken whether the owner is entitled to get value of the improvements in respect of the land acquired. In the result, Writ Petitions are dismissed. K. PADMANABHAN NAIR, JUDGE. cks