A.P. Ameena XL/7892 v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935 WP(C).No. 18336 of 2013 (N) ---------------------------- PETITIONER(S): - ------------------- A.P.AMEENA XL/7892, SUNSHINE, JEW STREET ERNAKULAM, KOCHI-682 035. BY ADVS.SRI.P.B.SURESH KUMAR (SR) SRI.LEO GEORGE SRI.T.T.RAKESH RESPONDENT(S): -------------------- ## 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 695 001. 2. THE LAND REVENUE COMMISSIONER GOVERNMENT OF KERALA, PUBLIC OFFICE BUILDING MUSEUM JUNCTION, THIRUVANANTHAPURAM. 695 033. 3. THE DISTRICT COLLECTOR ERNAKULAM. 682 030. 4. THE SPECIAL TAHSILDAR (LA) KOCHI CORPORATION, VYTTILA, KOCHI-19. 5. THE CORPORATION OF KOCHI REPRESENTED BY ITS SECRETARY, CORPORATION OF KOCHI ERNAKULAM. 682 011. R1 TO R4 BY SPL. GOVT. PLEADER SRI.TOM K.THOMAS R5 BY ADV. SRI.E.D.GEORGE SC, COCHIN CORPORATION R5 BY SRI.P.K.SOYUZ,SC,COCHIN CORPORATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-10-2013, ALONG WITH WPC. 21366/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18336 of 2013 (N) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------------- - EXT.P1- TRUE COPY OF THE TOWN PLANNING SCHEME FOR ERNAKULAM STADIUM COMPLEX DATED NIL. - EXT.P2- TRUE COPY OF THE NOTIFICATION OF THE SCHEME PUBLISHED BY THE GOVERNMENT UNDER SECTION 12(5) OF THE TOWN PLANNING ACT DATED 25.3.1981. - EXT.P3- TRUE COPY OF THE SKETCH OF THE ROAD CONNECTING PADMA JUNCTION IN MG ROAD AND PULLEPPADY JUNCTION IN CHITTOOR ROAD AND THE BUILDINGS CONSTRUCTED ON EITHER SIDE OF THE ROAD. - EXT.P4- TRUE COPY OF THE NOTIFICATION ISSUED BY THE FOURTH RESPONDENT DATED 25.10.1996. - EXT.P5- TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE DISTRICT COLLECTOR WITHOUT ITS ANNEXURES DATED 9.4.2008. - EXT.P6- TRUE COPY OF THE REMARKS FORWARDED BY THE FOURTH RESPONDENT DATED 2.8.2008. - EXT.P7- TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT DATED 1.2.2010. - EXT.P8- TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER AND OTHER DATED 6.11.2012. - EXT.P9- TRUE COPY OF THE PROCEEDINGS OF THE SECOND RESPONDENT DATED 11.4.2013. - EXT.P10- TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE FOURTH RESPONDENT DATED 22.4.2013. RESPONDENT(S)' EXHIBITS ------------------------------- - EXT.R4(a): A COPY OF THE SKETCH OF THE PROPOSED PULLEPADY THAMMANAM ROAD - EXT.R5(a): TRUE COPY OF THE SKETCH PREPARED BY THE 5TH RESPONDENT EXT.R5 (b): TRUE COPY OF THE ORDER DATED 1.2.2010 ISSUED BY THE GOVERNMENT /TRUE COPY/ P.S TO JUDGE ## **K. SURENDRA MOHAN,J** **------------------------------W.P(C) Nos.18336 & 21366 of 2013 ---------------------------------Dated this the 4[th] October, 2013** ## **JUDGMENT** The petitioners in these writ petitions are owners of small plots of land by the side of a road that is proposed to be widened. The proposal for widening the said stretch, according to the petitioners, has been in existence for a number of years. As per Ext.P1, Detailed Town Planning Scheme (hereinafter referred to as 'DTP Scheme' for short) for the Ernakulam Stadium Complex, initially the proposal was to widen the stretch of road in question to 22 meters. The said DTP Scheme is of the year 1981. Though as per Ext.P2 dated 25.3.1981, Ext.P1 was approved, according to the petitioners, no further action was taken in the matter thereafter. It is also pointed out that as per Exts.P1 and P2, only small portions of the properties of the petitioners were proposed to be acquired. 2. Later on, action was initiated to implement the proposal in Ext.P1 Scheme by issuing a notification under Section 4 (1) of the Kerala Land Acquisition Act (hereinafter referred to as 'the Act' for short) in 1996. Ext.P4 is the said **W.P(C) Nos.18336 & 21366 of 2013** **2** notification dated 25.10.1996. But, in Ext.P4, the proposal in Ext.P1 was found to have been deviated from and substantially larger extents of land were proposed to be acquired. The entire properties of the petitioners were sought to be acquired. Therefore, objections were promptly submitted to the proposal. However, the said proposal also was not pursued and the notification lapsed. The present notification is Ext.P10 dated 22.4.2013. As per Ext.P10 also, the same proposal as in Ext.P4 is being pursued. 3. According to the learned Senior Counsel Sri.P.B.Suresh Kumar who represents the petitioner in W.P (C) No.18336 of 2013, invocation of the urgency clause under Section 17 (4) of the Act is absolutely uncalled for and without any justification. The proposal for widening the road has been in the contemplation of the authorities from the year 1996 onwards. Land acquisition proceedings had also been initiated, but were not pursued for reasons best known to the authorities. Therefore, the circumstances do not warrant a dispensation of the enquiry under Section 5A of the Act. It is also contended that the original proposal **W.P(C) Nos.18336 & 21366 of 2013** **3** was for acquiring lands from the northern side of the road. Since the said proposal was in existence, the land owners who had sought permission to construct buildings on the said side were granted permission only after obtaining an undertaking from them that the buildings would be demolished upon acquisition of their properties. It is contended that the proposed alignment has been changed under the influence of the persons who want to save the buildings constructed by them and to wriggle out of the undertaking that they have given to the Corporation. According to the learned Senior Counsel, invocation of Section 17 (4) of the Act is therefore intended only to shut out the objections of persons like the petitioners who are aggrieved by the change in the alignment effected. It is also contended that the urgency that is now projected is not in existence and is only a make believe. 4. Advocate T.K.Venugopalan, who appears for the petitioners in W.P.(C)No.21366 of 2013, substantially supporting the contentions of the learned Senior Counsel, contends that Ext.P9 order of the 2[nd] respondent does not **W.P(C) Nos.18336 & 21366 of 2013** **4** reflect the satisfaction that is a pre-requisite for invocation of Section 17 (4) of the Act. It is also contended that the widening proposed at the present stage relates only to a small portion of the road, which would have no effect on traffic congestion in the city. 5. According to the counsel, the alignment of the road has been changed acting under the influence of powerful persons. Malafides is writ large on the entire proceedings, according to the petitioners in the both the writ petitions. The petitioners also place reliance on the decision of the Apex Court reported in Radhy Shyam V. State of Uttar Pradesh & Others [ (2011) 5 SCC 553] and Women Education Trust v. State of Haryana [2013 (3) KLT SN 28 (Case No.29) SC] in support of their contentions. 6. Separate counter affidavits have been filed by the 4[th] respondent as well as the Corporation of Kochi. According to the 4[th] respondent, though the properties of a number of persons are sought to be acquired, none of them have raised any objection, except the petitioners. The present road is only 8 meters wide and the proposal is to **W.P(C) Nos.18336 & 21366 of 2013** **5** widen it to 22 meters. According to the learned Government Pleader, the decision to invoke the urgency clause has been taken considering all the relevant aspects of the case. The satisfaction that is expected to be arrived at is a subjective one, that is not amenable to judicial scrutiny in view of the decisions of the Apex Court in Union of India & Others V. Praveen Gupta & Others [(1997) 9 SCC 78] and First Land Acquisition Collector V. Nirodh Prakash Gangoli [(2002) 4 SCC 160]. It is also contended that in view of the work of the Kochi Metro Rail that is in progress, widening of the present road is an urgent necessity to ease the traffic congestion, that is bound to be created when work along the M.G Road commences. In the above context, it is contended that there are absolutely no grounds to interfere with the proceedings already initiated or to grant any of the reliefs sought for by the petitioners. 7. Advocates E.D George as well as Sri.Raju Sebastian Vadakkekkara who respectively represent the Corporation of Cochin in these writ petitions, have advanced identical contentions. According to the Corporation, even at the time **W.P(C) Nos.18336 & 21366 of 2013** **6** of issue of Ext.P4 notification, some of the land owners had surrendered their lands free of cost with the object of cooperating with the widening of the road. It is pointed out that despite there being a Mosque on the northern side of the road, a portion of the property thereof has also been utilised for the purpose of the widening, with the consent of the authorities. It is contended that after 18.3.1996 no building plan has been sanctioned by the Corporation in view of the proposal for widening that was in existence. For the above reasons, they seek dismissal of the writ petitions. 8. Heard. The basic facts are not in dispute. It is not in dispute that the proposal for widening the road in question has been in existence from the year 1981 onwards. Exts.P1 and P2 bear testimony to the above fact. As rightly pointed out by the counsel appearing for the petitioners, there has been a change in the proposed alignment, which is evident from a comparison of the extent of the lands notified for acquisition in Exts.P1, P2 and P4. In Ext.P4, substantially larger extents of the properties of the petitioners were sought to be acquired. It is also not in **W.P(C) Nos.18336 & 21366 of 2013** **7** dispute that Ext.P4 notification had lapsed for lack of follow-up action. The counsel for the Corporation submits that the proposal could not be pursued for lack of funds. Whatever be the reason, the fact remains that the proposal was not pursued. The present notification is more or less on the same lines as Ext.P4, maintaining the same alignment. It is to the said proposal that the petitioners have raised objections. It is the case of the counsel appearing for the Corporation as well as the Government Pleader that other than the petitioners, none of the land owners have raised any objections. If so, the fact remains that the conduct of an enquiry under Section 5A of the Act need not be a time consuming or a cumbersome procedure. Added to this, is the fact that the proposal has been pending since 1981 and the further fact that there has been a change in the proposal with respect to the alignment, after Exts.P1 and P2. According to the petitioners, the said change has been effected at the instance of persons who are on the northern side of the road. Consequently, the major portion of the acquisition has now been shifted from the **W.P(C) Nos.18336 & 21366 of 2013** **8** northern side to the southern side. There is no explanation in any of the counter affidavits filed as to the reason for the said shift. A perusal of Ext.P9 order invoking the urgency clause does not show that the above facts had been placed before the Land Revenue Commissioner while deciding whether to invoke the urgency clause under Section 17 (4) of the Act. The order is silent regarding the above aspects. In fact, Ext.P9 does not contain any statement regarding the reason for the urgency that is stated to be in existence. Especially in view of the fact that, the proposal has been in existence from 1981 onwards, it was incumbent on the authorities to have referred to the circumstances that required the urgency clause to be invoked. 9. The learned Government Pleader has placed reliance to the decision reported in Union of India V. Praveen Gupta [1997 (9) SCC 78 to contend that the decision on urgency is an administrative decision and is a matter of subjective satisfaction of the appropriate Government on the basis of the materials available on record. **W.P(C) Nos.18336 & 21366 of 2013** **9** 10. Reliance is also placed on the decision in First Land Acquisition Collector v. Nirodhi Prakash Gangoli [(2002) 4 SCC 160] to contend that an order under Section 17 (4) of the Act is not to be interfered with. Particular reliance is placed on the following observations at page 165 of the said judgment. “The question of urgency of an acquisition under Sections 17 (1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant consideration into account and is satisfied that there exists emergency for invoking powers under Sections 17 (1) and (4) of the Act, and issues notification accordingly, the same should not be interfered with by the court unless the court comes to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide. Whether in a given situation there existed urgency or not is left to the discretion and decision of the authorities concerned. If an order invoking power under Section 17 (4) is assailed, the courts may enquire whether the appropriate authority had all the relevant materials before it or whether the order has been passed by non-application of mind.” **W.P(C) Nos.18336 & 21366 of 2013** **10** 11. A perusal of the above observations show that where the Government takes a decision taking all relevant considerations into account and is satisfied that there exists a necessity for invoking the urgency provisions, the same should not be interfered with. In the present case, Ext.P9 order does not contain any indication as to whether all the materials and circumstances were placed before the authority at the time of taking the decision. The passage also makes it clear that the decision cannot be interfered with unless the Court comes to a conclusion that appropriate authorities have not applied its mind to the relevant factors or that the decision has been taken by the appropriate authorities mala fide. 12. In the present case, Ext.P9 is a cryptic order which only states that the 2[nd] respondent having examined the proposal was satisfied that the land is urgently required and therefore the urgency clause was invoked. Absolutely no reasons have been stated for invocation of the urgency clause, in Ext.P9. **W.P(C) Nos.18336 & 21366 of 2013** **11** 13. The urgency clause under Section 17 (4) deprives a citizen or the land owner of his valuable right under Section 5A of the Act. The Apex Court has in a number of decisions reiterated the need to preserve the rights of the land owner under Section 5A of the Act, unless compelling circumstances justified denial thereof. The decision in Radhy Shyam V. State of Uttar Pradesh & Others [ (2011) 5 SCC 553] has dealt with the issue elaborately and has formulated the principles that are to govern the situation. I notice that the judgment in Union of India & Others V. Praveen Gupta & Others [(1997) 9 SCC 78) (supra) has also been referred to therein. The principles serially numbered as (iv), (v) and (vi) in paragraph 77 of the said judgment are reproduced hereunder: (iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of **W.P(C) Nos.18336 & 21366 of 2013** **12** hearing the landowner or other interested persons. (v) Section 17 (1) read with Section 17 (4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired. (vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17 (1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the authorities concerned did not apply their mind to the relevant factors and the records.” 14. The above dictum has been followed in Women Education Trust v. State of Hariyana [2013 (3) KLT SN 28 (Case No.29) SC] also. 15. A project that has been in the Pipeline since 1987 is being implemented pursuant to Ext.P4. It is not in **W.P(C) Nos.18336 & 21366 of 2013** **13** dispute that there are only two land owners who have raised objections. A consideration of their objections under Section 5A of the Act cannot be expected to be time consuming, even if it is assumed that the urgency is real. Ext.P9 does not show that there has been any application of mind by the authority to the relevant facts, while deciding to invoke the urgency clause. 16. The order invoking the urgency clause under Section 17 (4) of the Act does not satisfy the mandate of the dictum laid down by the Hon'ble Supreme Court in the decisions referred to above. In view of the above, these writ petitions are allowed. Ext.P9 order in both the writ petitions, in so far as it relates to the petitioners are set aside. The respondents are directed to proceed with the acquisition after complying with Section 5A of the Act. Sd/K. SURENDRA MOHAN Judge ma /True copy/ P.S to Judge