Babu Varghese v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WA.No. 766 of 2010() -------------------AGAINST THE JUDGEMENT IN WPC.36899/2009 .................... APPELLANT(S): PETITIONER ------------------------ BABU VARGHESE, S/O.VARKEY, VARKEY VALLIKAT, VAKATHANAM, REP.BY HIS POWER OF ATTORNEY HOLDER K.M.ITTY, KALUKADAVIL HOUSE, MANARCAUDU.P.O, KOTTAYAM. BY ADV. SRI.A.N.RAJAN BABU SMT.K.SUNITHA VINOD RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, SECRETARIATE BUILDING, THIRUVANANTHAPURAM. 2. THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOTTAYAM. 4. THE SPECIAL THAHASILDAR (LA), KOTTAYAM. 5. THE VAKATHANAM GRAMAPANCHAYATH, REPRESENTED BY ITS SECRETARY, VAKATHANAM.P.O, CHANGANACHERRY. 6. JAMES KUTTY, VELANGAMPARA, VAKATHANAM. BY ADV. SRI.BECHU KURIAN THOMAS FOR R1 BY SR. GOVT. PLEADER SMT.K.MEERA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON 29/07/2010 DELIVERED THE FOLLOWING: ## **J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J.** ------------------------------- ## **W.A.No. 766 of 2010** ------------------------------- ## **Dated this the 28[th] day of July, 2010** ## **J U D G M E N T** ## Ravindran,J. The appellant is the petitioner in W.P.(C) No.36899 of 2009. By judgment delivered on 30.3.2010, the learned single Judge dismissed the writ petition. The brief facts of the case are as follows. 2. The appellant purchased a parcel of land, 18.57 ares in extent, comprised of 2.43 ares in R.Sy.No.203/1; 6.92 ares in R.Sy.No.203/1-2 and 9.35 ares in R.Sy.No.203/1 situated in Vakathanam Village, Changanacherry Taluk, Kottayam District. The first two lots were purchased in the year 2006 and the third lot in the year 2008. The said parcel of land lies at Njalikuzhi junction in Vakathanam Grama Panchayat, the fifth respondent in the writ petition. The Panchayat had on 25.10.2006 unanimously resolved to acquire the said parcel of land and the six shop rooms existing therein, that then belonged to Sri.Mathew Kurian, under the provision of the Land Acquisition W.A.No.766 of 2010 2 Act, 1884. Ext.P2 produced along with the writ petition is a copy of the said resolution. The predecessor-in-interest of the appellant thereupon submitted Ext.P3 representation dated 18.11.2006 to the Deputy Director of Panchayats, Kottayam, objecting to the proposed acquisition. Thereafter, he assigned the said parcel of land to the appellant herein under three different sale deeds, two of which were executed in the year 2006 and the third in the year 2008. The Deputy Director of Panchayats had in the meanwhile issued Ext.P4 proceedings on 7.2.2007 approving the suitability of the land proposed to be acquired. The Government thereafter passed Ext.P5 order dated 14.11.2007 granting permission to the Vakathanam Grama Panchayat to acquire the said parcel of land without any financial commitment to the Government. By Ext.P5, the Government also permitted invocation of the urgency clause, taking note of the fact that the acquisition is for the construction of a taxi stand, which would in turn avert the frequent accidents and ease the traffic block in Njalikuzhi junction. W.A.No.766 of 2010 3 3. The Commissioner of Land Revenue thereafter issued Ext.P11 proceedings, dated 28.3.2008, directing that the provision for hearing of objections under section 5A of the Land Acquisition Act, 1884 would not apply to the proposed acquisition. The fourth respondent thereafter issued Ext.P6 notification, dated 29.4.2008, under section 4(1) read with section 17(4) of the Land Acquisition Act, 1884. More than three months thereafter, the appellant submitted Ext.P7 representation, dated 8.8.2008, objecting to the proposed acquisition. Shortly thereafter, the Government issued Ext.P12 declaration, dated 28.1.2009, under section 6 of the Land Acquisition Act, 1884. The appellant thereupon filed Ext.P13 representation before the Honourable Minister for Revenue and thereafter filed W.P.(C) No.6557 of 2009 in this Court. By Ext.P14 judgment delivered on 11.3.2009, a learned single Judge disposed of the said writ petition with a direction to the State Government to consider Ext.P13 representation and pass orders thereon, after affording the appellant an opportunity of W.A.No.766 of 2010 4 being heard. (a copy of Ext.P13 representation was produced and marked as Ext.P10 in the said writ petition.) The learned single judge also directed that such hearing shall be considered as a hearing under section 15A of the Land Acquisition Act, 1884. The Government was also directed to pass orders on said representation before the Award is passed. The Panchayat thereupon filed R.P.No.700 of 2009 seeking a review of Ext.P14 judgment. The grievance voiced in the review petition was that no time limit had been fixed in Ext.P14 judgment for passing orders on Ext.P13 representation. When the review petition came up for hearing on 6.8.2009, the learned Government Pleader submitted that orders are being issued on that day. The review petition was accordingly closed recording the said submission. The Government thereafter passed Ext.P16 order, dated 9.11.2009, overruling the appellant's objections. The instant writ petition was thereupon filed challenging Ext.P2 resolution; Ext.P4 order passed by the Deputy Director of Panchayats; Ext.P5 Government order; Ext.P6 notification issued 5 W.A.No.766 of 2010 under section 4(1) read with section 17(4) of the Land Acquisition Act, 1884, Ext.P11 order passed by the Land Revenue Commissioner dispensing with section 5A enquiry; Ext.P12 declaration issued by the Government under section 6 (1) of the Land Acquisition Act, 1884 and Ext.P16 Government order rejecting Ext.P13 representation. The appellant also sought consequential reliefs. 4. The Vakathanam Grama Panchayat resisted the writ petition by filing a counter affidavit. It was contended that the land proposed to be acquired is situated in a very busy junction, where a large number of vehicles, about 400 in number, are parked daily, resulting in huge traffic blocks and frequent accidents. It was also stated that the proposed Perumthuruthy-Manacaud Bye-pass road would pass through the said junction, as a result of which the situation in Njalikuzhi junction will worsen and that the decision to construct a taxi stand in the disputed lands was taken to ensure the smooth flow of traffic and to avoid congestion. It was also stated that the W.A.No.766 of 2010 6 project was approved by the District Town Planning Committee, that the site has been approved by the Deputy Director of Panchayats and that the State Government have also granted approval. As regards the petitioner's contention that the Panchayat is in possession of 5 acres of vacant land where a taxi stand can be constructed, it was contended that the said parcel of land is situated two kilometers away from the junction and was purchased under the Industrial Development Project of the SIDCO (Small Scale Industrial Development Corporation of Kerala) for industrial purposes. It was also stated that the said parcel of land is not suitable for a taxi stand. It was also contended that the petitioner purchased the land after a decision was taken to acquire the same. 5. The learned single judge considered the rival contentions and held that the proposed acquisition is in no way illegal. The learned single judge also held that there is no mala fides in the choice of the land. The writ petition was W.A.No.766 of 2010 7 accordingly dismissed. Aggrieved thereby the appellant has filed this writ appeal. 6. We heard Sri.A.N.Rajan Babu, the learned counsel appearing for the appellant, Smt.K.Meera, the learned Senior Government Pleader appearing for respondents 1 to 4 and Sri.Bechu Kurian Thomas, the learned counsel appearing for the fifth respondent. We have also considered the pleadings and materials on record. The main contention raised by the learned counsel appearing for the appellant is that the proposed acquisition is mala fide. He contended that the decision regarding the suitability of the land proposed to the acquired was not arrived at after a proper application of mind and that the proposed acquisition was brought about as a result of the pressure and influence exerted by the sixth respondent, who is closely associated with the President and members of the Vakathanam Grama Panchayat. It was contended that the sixth respondent had expressed interest in purchasing the land from the former owner and dissatisfied with the sale to the appellant, W.A.No.766 of 2010 8 he had persuaded the members of the Panchayat to acquire the said land. The learned counsel also contended that Panchayat is admittedly in possession of 5 acres of land, where the taxi stand can be conveniently located and therefore the proposed acquisition is malafide. 7. Per contra, the learned counsel appearing for the fifth respondent submitted that the appellant purchased the lands involved in the acquisition, after the Panchayat took a decision to acquire it. He further submitted that the land now sought to be acquired is the land best suited for a taxi stand and that 5 acres of land referred to by the appellant lies 2 Kms. away from Njalikuzhi junction and the location of taxi stand in that parcel of land would not bring about any change in the traffic congestion and accidents that frequently take place in Njalikuzhi junction. He also submitted that the requisitioning authority is the best judge of the situation and this Court in exercise of its powers under Article 226 of the Constitution of India will not normally interfere by substituting its judgment for W.A.No.766 of 2010 9 the judgment of the Government. The learned counsel also placed reliance on the decision of the Apex Court in **Sooraram Pratap Reddy and others v. District Collector, Ranga Reddy District and others** (2008 (9) SCC 552) in support of the said contention. 8. The pleadings and the materials on record disclose that the decision to acquire the lands involved in the writ petition was taken by the Vakathanam Grama Panchayat as early as on 25.10.2006. The appellant purchased the said parcel of land only thereafter and that too, after the former owner had objected to the proposed acquisition. The appellant does not dispute the need and necessity for putting up the taxi stand. He also does not dispute the fact that accidents frequently happen in Njalikuzhi junction. The main crux of the argument of the learned counsel is that the taxi stand can be located else where and in that regard, his contention is that an alternate land, 5 acres in extent is available with the Panchayat, where a taxi stand can be located. The Apex Court has in **Sooraram Pratap** W.A.No.766 of 2010 10 **Reddy** (supra) held that in deciding whether the acquisition is for a public purpose or not, prima facie the Government is the best judge and normally in such matters, the Writ Court will not interfere by substituting its judgment for the judgment of the Government. The Apex Court also referred to and relied on the decision of the Privy Council in **Hamabai Framjee Petit v. Secretary of State for India in Council** (AIR 1914 PC 20), wherein, the Judicial Committee of the Privy Council held that on the question whether the purpose for which land is said to be acquired is a purpose in which general interest of the community is concerned, prima facie, the Government are good judges and that though they are not the absolute judges, the Court does not easily hold them to be wrong. The Apex Court also relied on various earlier decisions wherein it had been held that it is primarily for the State Government to decide whether there exists a public purpose of not, and it is for the Apex Court or the High Courts to evaluate the evidence and come to its own conclusion as to whether or not there is public purpose unless it W.A.No.766 of 2010 11 comes to the conclusion that it is a mala fide or colourable exercise of the power. In other words the courts would interfere only when the exercise of the power serves no public purpose or it serves a private purpose _._ 9. The materials on record disclose a state of affairs which required the intervention of the local authority. As noticed earlier, the appellant also does not dispute the said need. The appellant has no case that the very idea of erecting a taxi stand was conceived with a view to wreck vengeance on him. Further, as noticed earlier, the appellant was not the owner of the land, when the decision to acquire the same was taken. He came into picture only thereafter. The appellant has no case that the decision evidenced by Ext.P2 was taken in view of any ill-will with the members of the Panchayat had against the former owner, Sri.Mathew Kurian. The appellant admittedly purchased the land only after the Panchayat decided to acquire the land. The plea of malafides alleged is that sixth respondent, who wanted to purchase the land, was aggrieved by W.A.No.766 of 2010 12 the fact that he could not buy it and influenced the President and members of the Panchayat to acquire the land. On the admitted facts of the case, the said plea cannot be countenanced. We accordingly hold that no grounds have been made out to interfere with the acquisition on the ground that it is malafide or is not for a public purpose. 10. We shall now deal with the contention of the appellant that the availability of 5 acres of land vitiates the proposed acquisition. As noticed earlier, the said parcel of land lies 2 Kms. away from Njalikuzhi junction. The appellant does not dispute the said fact. The decision to acquire the disputed parcel of land was taken with a view to avert the frequent accidents and ease the traffic block at Njalikuzhi junction. The disputed land is situated at Njalikuzhi junction. The appellant also does not dispute the fact that the proposed PerumthuruthyManacaud Bye-pass road passes through Njalikuzhi junction. Such being the situation and the ground realities, no purpose would be served by locating the taxi stand 2 Kms. away from the W.A.No.766 of 2010 13 junction. Further, the said parcel of land was acquired by the Panchayat for setting set up an Industrial Estate and the works in connection with the said Industrial Estate have started. Therefore, the mere fact that Panchayat is in possession of land elsewhere, far away from Njalikuzhi junction, cannot be a reason to hold that the proposed acquisition is a colourable exercise of power. Further, we are informed that an Award has already been passed on 31.3.2010 and that notice of award has also been served on the appellant. For the reasons stated above, we hold that there is no merit in the writ appeal. The Writ Appeal fails and is accordingly dismissed. The parties shall bear their respective costs. ## **J.CHELAMESWAR, Chief Justice** **P.N.RAVINDRAN, Judge.** **nj.**