Alexander Pothen v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931** **WP(C).No. 19443 of 2009(A)** **--------------------------------------** **PETITIONER:** **-------------------** **ALEXANDER POTHEN, ROW-2, VILLA-5, VALABH NAGAR, BORIVLI (WEST), MUMBAI-400 103.** **BY ADV. MR.GEORGE POONTHOTTAM.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DISASTER MANAGEMENT(TRP CELL) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** **3. THE DEPUTY COLLECTOR (LAND ACQUISITION), COLLECTORATE, THIRUVANANTHAPURAM.** **R1 TO R3 BY SR. GOVERNMENT PLEADER MR. K.V. MANOJ KUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.19443/2009-A:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE MEMORANDUM OF UNDERSTANDING.** **EXT.P.2: G.O.(RT).NO.777/96/L/AD DTD. 12/02/1996.** **EXT.P.3: G.O.(RT).NO.3298/98/LAD DTD. 11/11/1998.** **EXT.P.4: COPY OF THE ORDER NO. NAD/20012/57/96 DTD. 20/02/1996.** ## **EXT.P.4.A: COPY OF THE ORDER DTD. 19/09/2007 ISSUED BY THE AIRPORT AUTHORITY OF INDIA.** **EXT.P.5: COPY OF THE ORDER NO. EC(II) 14853/10.02.42 (G-16) 95/96 DTD. 06/05/1996. EXT.P.6: COPY OF THE ORDER NO. 3/19/SIA/NFC/96-NRI DTD. 13/21-8-96.** **EXT.P.7: COPY OF THE CERTIFICATE NO. B3-10120/97 DTD. 29/07/1997.** **EXT.P.8: COPY OF THE NOTICE DTD. 28/04/2008.** **EXT.P.9: COPY OF THE G.O.(RT).NO.663/2008/DMD DTD. 26/02/2008.** **EXT.P.10: COPY OF THE REPRESENTATION DTD. 17/09/2008.** **EXT.P.11: COPY OF THE JUDGMENT IN W.P.(C).NO.37365/2008 DT.D 06/01/2009.** **EXT.P.12: COPY OF THE G.O.(RT).NO.1705/2009/DMD DTD. 05/06/2009.** **EXT.P.13: COPY OF THE NOTICE DTD. 12/06/2009.** **EXT.P.14: COPY OF THE LETTER DTD. 03/07/2009.** **EXT.P.15: COPY OF THE AWARD NO.1 OF 2009 DTD. 10/07/2009.** **EXT.P.16: COPY OF THE NOTICE DTD. 29/07/2009.** **EXT.P.17: COPY OF THE SECTION 6 DECLARATION DTD. 16/10/2008.** **EXT.P.18: COPY OF THE ORDER DTD. 19/08/2008.** **EXT.P.19: COPY OF THE NOTICE DTD. 07/05/2007.** **EXT.P.20: COPY OF THE COMMUNICATION ISSUED BY THE VILLAGE OFFICER, PETTAH NO.5/09/RIGHT TO INFORMATION DTD. 11/11/2009.** ## **W.P.(C). NO.19443/2009-A:** ## **RESPONDENTS' EXHIBITS:** ## **EXT.R2.A: COPY OF THE GOVERNMENT ORDER DTD. 09/08/07.** **EXT.R2.B: COPY OF THE GUIDELINES ISSUED FOR THE IMPLEMENTATION OF THE SCHEME.** **EXT.R2.C: COPY OF THE SECTION 6 DELCLARATION.** **EXT.R2.D: COPIES OF 2 FACTUAL REPORTS SENT RESPECTIVELY ON 25/02/09 AND 23/05/09 TO THE GOVERNMENT.** ## **EXT.R2.E: COPY OF THE GUIDELINES ISSUED FOR THE SELECTION OF LAND FOR THE IMPLEMENTATION OF TSUNAMI REHABILITATION PROJECT.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 19443 OF 2009 (A) =====================** ## **Dated this the 16[th] day of February, 2010** ## **J U D G M E N T** Petitioner claims to be the owner of 61 Ares of land in Sy.Nos.1790/E and 1795/1 (LA Sy.No.1790/40 and 1795/2) in Pettah Village of Trivandrum District. According to the petitioner, this land is a dry land which he purchased during 1994 and 1995 for the purpose of setting up a Five Star Airport Hotel. 2. In this writ petition, petitioner is seeking to challenge Exts.P8, P12, P13 and P14, which are the proceedings issued in connection with the acquisition of the said land in terms of the Land Acquisition Act and the public purpose for which the land is sought to be acquired is for the implementation of Tsunami Rehabilitation Programme Scheme formulated by the Government of India 3. The aforesaid proceedings are challenged on the following grounds. According to the petitioner, administrative sanction for implementation of the Tsunami Rehabilitation Programme was granted on 9/8/07. The Commissioner for Land Revenue issued proceedings under Section 17(4) of the Act in **WPC 19443/09** **:2 :** respect of the land by proceedings dated 7/4/2008. Following this, composite notification under Section 4(1) and 17(4) was issued on 11/4/08 and Ext.P17, the declaration under Section 6 was published on 18/10/2008. Petitioner submits that in view of the long interval in between the composite notification under Section 4(1) and 17(4) and Section 6 declaration, which is more than 6 months, there was no necessity or justification for having dispensed with Section 5A enquiry. In support of the contention raised against dispensing with Section 5A enquiry, learned counsel for the petitioner relied on the judgment of this Court in _**Prakash M.S. v. State of Kerala**_ [(2010 (1) KHC 529], the judgment in WP(C) No.5158/09 and the Apex Court judgments in _**Essco Fabs Private Ltd. and another v. State of Haryana and another**_ (2009(2) SCC 377) and _**Hindusthan Petroleum Corporation Ltd. v. Darius Shapur Chenai and others**_ (2005 (7) SCC 627). 4. Secondly, it is contended that for the implementation of Ext.R2(b), the Tsunami Rehabilitation Programme and Ext.R2 (e), GO(Rt) No.2707/07/DMD dated 4/7/07, according sanction for acquisition of land under the Fast Track arrangement, the land in **WPC 19443/09** **:3 :** question is unsuitable. Learned counsel for the petitioner also placed reliance on Ext.P20, a reply given by the Village Officer, Pettah on 11/11/2009 and contended that the land in question is situated within 200 meters from the High Tide Line. Thirdly, it is contended that the whole acquisition proceedings is vitiated for lack of bonafides. Learned counsel contended that initially the whole acquisition proceedings were initiated and proceeded on the basis that the entire land under acquisition belonged to the petitioner. However, at a later point of time, as can be seen from Exts.P13, P15 and P17, names of certain strangers were also introduced, only to give a colour of dispute regarding the compensation payable and to deposit the compensation in the Reference Court as provided under Section 31 of the Land Acquisition Act, so that it is ensured that the petitioner does not receive even the amount awarded within a reasonable time. 5. Answering the plea of the learned counsel for the petitioner that there was no justification for invoking the power under Section 17(4) to dispense with enquiry under Section 5A of the Act, learned Government Pleader contended that there was no inordinate or fatal delay in this case. According to him, after **WPC 19443/09** **:4 :** the issuance of composite notification under Section 4(1) and 17 (4), representations were received by the Government objecting to the acquisition and that time was taken to obtain reports from District Collector and to consider the representations. He also placed reliance on the Apex Court judgment in _**State of U.P. v. Pista Devi**_ [(1986) 4 SCC 251] and the Division Bench judgment in WA No.2681/09 and connected cases. 6. He also submitted that although enquiry under Section 5A was dispensed with, no prejudice of any nature was caused to the petitioner in as much as he had submitted Ext.P10 representation objecting to the acquisition, which was directed to be considered by the Government vide Ext.P11 judgment of this Court in WP(C) No.37365/08. It is stated that the petitioner was heard and the matter was considered in the light of two reports obtained by the Land Revenue Commissioner from the District Collector, copies of which are Ext.R2(d) series. It is stated that it was thereafter that Ext.P12 order was passed dealing with each of the contentions urged by the petitioner. 7. In regard to the contention of the learned counsel for the petitioner that the land in question is unsuitable for the **WPC 19443/09** **:5 :** implementation of the scheme, learned Government Pleader relied on Exts.R2(b), R2(c), Ext.P20 and the judgment of the Division Bench in WP(C) No.5158/09. He also contended that the choice of land for acquisition purposes is a matter entirely within the domain of the Government and relied on the Apex Court judgment in _**Scindia Employees' Union v. State of Maharashtra**_ [(1996) 10 SCC 150]. 8. In so far as the argument that the acquisition proceedings lack bonafides, learned Government Pleader explained that going by the thandaper register and other revenue documents, the title of the petitioner is only on an extent of 59.730 Ares and that the strangers mentioned in Exts.P13, P15, P17 and P19 had title over the remaining 1.270 Ares. According to him, it was therefore that notice was issued to them and their names also figure in Exts.P13, P15 and P17. 9. The first issue to be considered is whether the interval between composite notification issued under Section 4(1) and 17 (4) and the declaration under Section 6 of the Act invalidates the order issued under Section 17(4) dispensing with Section 5A enquiry. As rightly argued by the learned counsel for the **WPC 19443/09** **:6 :** petitioner, and as held in the judgment of this Court in _**Prakash M.S. v. State of Kerala**_ [(2010) 1 KHC 529] and the other Apex Court judgments referred to above, Section 5A creates a valuable right to the persons who are affected by land acquisition proceedings and this right cannot be taken away as a matter of routine. However, in urgent situations, to which Section 17(1) or 17(2) applies, it is open to the appropriate Government to dispense with the enquiry under Section 5A, exercising its powers under Section 17(4) of the Act In this case, power under Section 17(4) has been invoked and the proceedings of the Land Revenue Commissioner in this behalf was issued as early as on 7/4/2008. It was thereafter that the composite notification under Section 4 (1) and 17(4) was issued on 11/4/2008. However, Section 6 declaration was issued only on 18/10/2008. Thus, in between the notification and Section 6 declaration, there is an interval of 6 months. 10. The question is whether this interval by itself will invalidate the order under Section 17(4) dispensing with enquiry under Section 5A of the Act. In my view, the interval by itself will not invalidate the order under Section 17(4) to dispense with **WPC 19443/09** ## **:7 :** enquiry under Section 5A of the Act. The contention of the counsel for the petitioner to the contrary is answered by the Apex Court in its judgment in _**State of U.P. v. Pista Devi**_ (1986(4) SCC 251), in which the interval was of more than a year. In this judgment, it was held that if the project needs to be implemented with urgency, merely because the officials entrusted with task of taking further action in the matter are negligent or tardy of taking further action, unless the acquisition can be said to be with an oblique motive, emergency or urgency will not cease to exist. This judgment has been followed by a Division Bench of this Court in the judgment in WA 2681/09 and connected cases, vide para 15 thereof. It is worth mentioning that the writ appeal judgment concerns acquisition in relation to the implementation of the very same project. 11. _**A.P.Sareen and others v. State of U.P and others**_ {(1997) 9 SCC 359} is a case, where delay occurred between Section 4(1) notification and Section 6 declaration and it was held by the Apex Court that though the need for urgent possession of the acquired land was dissipated by bureaucratic inadvertence, the urgency did not cease and the urgency continues as long as **WPC 19443/09** **:8 :** the scheme is not initiated, action taken and the process completed. This judgment is an added reason for rejecting the contention of the petitioner that in view of the delay in issuing Section 6 declaration, there was no justification in dispensing with Section 5A enquiry. 12. It should also be stated that the learned Government Pleader had contended that inspite of the order dispensing with Section 5A enquiry, the petitioner had an effective opportunity to raise his objections consequent on Ext.P11 judgment of this Court where Ext.P10 representation filed by the petitioner was directed to be considered and dealt with. It is pointed out that accordingly the entire issues have been considered in the light of Ext.R2(d) reports of the District Collector, which were obtained by the Land Revenue Commissioner. Though Ext.P12 order was passed after Section 6 declaration was published, fact remains that the petitioner did have an opportunity of canvassing his objections against the acquisition before the Land Revenue Commissioner. Therefore, as far as the petitioner is concerned, no prejudice was caused for want of enquiry under Section 5A of the Act. 13. The second contention raised by the counsel for the **WPC 19443/09** **:9 :** petitioner is regarding the suitability of the land. This contention is raised mainly relying on Ext.P20, the information obtained from the Village Officer, Pettah, invoking the provisions of the Right to Information Act, which according to the petitioner suggests that the land is situated within 200 meters of the High Tide Line, and therefore, cannot be used for the implementation of the scheme. Ext.R2(b) is the Tsunami Rehabilitation Scheme. Under the said scheme, among the four priority groups, this case concerns priority group III, which includes families living within 200 meters of the high tide line and with no other residential within 500 meters of the coastline High Tide Level and house elsewhere. Ext.R2(e), the Government Order dated 4/7/07 referred to earlier provides that the sites identified should be potentially suitable lands within the Grama Panchayat itself, which should be beyond 200 meters landward from the High Tide Line in case of fishermen community and beyond 500 meters from High Tide Line in case of non fishermen community. It is further provided that as the inhabitants of the coastal area, especially the fishermen community, mainly depend upon the sea for their livelihood, sites identified should be having proximity and access to the sea. **WPC 19443/09** **:10 :** Referring to Ext.R2(e), learned Government Pleader points out that most of the beneficiaries are fisherman and therefore, have to be rehabilitated as provided in Exts.R2(e). He states that as is evident from Ext.P20 itself, the distance to the land from the high tide line is more than 200 meters and therefore, it satisfies the norms laid down by the Government for choice of the land. He also sought to place reliance on the Apex Court judgment in _**Scindia Employees' Union v. State of Maharashtra**_ [(1996) 10 SCC 150], where it is stated that it is for the appropriate Government to take a decision whether a particular land is suitable for the public purpose and it is not for the Court to substitute its opinion in that behalf. Even apart from the observations in the judgment relied on by the learned Government Pleader, it is a fact that the land identified by the respondents satisfied the standards laid down by them. Therefore, I am not satisfied that the petitioner has made out a case for interference even on this ground. 14. The last contention raised by the learned counsel for the petitioner is of malafides. As already stated, this argument is raised relying on Exts.P13, P15 and P17, which shows the **WPC 19443/09** **:11 :** presence of certain strangers in the acquisition proceedings. This has been explained by the learned Government Pleader by stating that going by the thandaper register and other revenue records, the land belonging to the petitioner is having an extent of 59.730 Ares and that the aforesaid strangers have ownership over the remaining 1.270 Ares of land and that it was therefore that their names figured in the aforesaid documents. In the light of this explanation and for dearth of other materials to conclude the issue in any other manner, I am not in a position to accept the contention raised by the learned counsel for the petitioner. 15. Therefore, the contentions raised by the petitioner against Exts.P8, P12, P13 and P14 are unsustainable and are only to be rejected. In the result, writ petition is only to be dismissed and I do so. ## **ANTONY DOMINIC, JUDGE** Rp