Dr. H. Vinayaranjan, Dr. Vannitha, and Dr. M.K. Parameswaran Nair v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 11TH DAY OF APRIL 2013/21ST CHAITHRA 1935 WP(C).No. 5261 of 2013 (G) --------------------------- PETITIONERS: ----------- 1. DR.H.VINAYARANJAN, S/O.SRI N.H RAJ KUMAR, AGED 54 YEARS, MEERA MAHAL, PAPPANAMMCODE, THIRUVANANTHAPURAM. 2. DR.VANNITHA, W/O.SRI.SURESH BABU THILAK, POURNAMI, T C 10/412, NEAR MANNATHALA POLICE STATION, NO BV 12, MANNATHALA P O, T.P NO.12441. 3. DR.M.K.PARAMESWARAN NAIR, AGED 69 YEARS S/O.KUNJUKRISHNA PILLAI, 'SIVAM' OPP.WOMEN'S POLYTECHNIC, PAPPANAMCODE P O, THIRUVANANTHAPURAM. BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES RESPONDENTS: ------------ 1. STATE OF KERALA REP BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM-695001. 3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM-695001. 4. DEPUTY COLLECTOR(LA) COLLECTORATE, LAND ACQUISITION OFFICE, THIRUVANANTHAPURAM-695001. 5. PUBLIC WORKS(D)DEPARTMENT REP BY ITS CHIEF ENGINEER, THIRUVANANTHAPURAM-695001. R1-R4 BY GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5261 of 2013 (G) **A P P E N D I X** ## PETITIONERS' EXHIBITS EXT.P1:TRUE COPY OF THE SETTLEMENT DEED DTD 10/06/1991. EXT.P1(a):- TRUE COPY OF THE BASIC TAX RECEIPT DTD 25/5/2012. EXT.P1(b):- PHTOGRAPH. EXT.P1(c):- PHTOGRAPH. EXT.P1(d):- PHTOGRAPH. EXT.P1(e):- PHTOGRAPH. EXT.P2:TRUE COPY OF THE SALE DEED DTD 16/6/1988. EXT.P2(a):- TRUE COPY OF THE TAX RECEIPT DTD 30/6/2011. EXT.P3:TRUE COPY OF THE SETTLEMENT DEED DTD 20/9/1985. EXT.P3(a):- TRUE COPY OF THE TAX RECEIPT DTD 30/6/2011. EXT.P4:TRUE COPY OF THE SALE DEED DTD 2/3/1988. EXT.P4(a):- TRUE COPY OF THE TAX RECEIPT DTD 28/2/2001. EXT.P5:TRUE COPY OF THE SALE DEED DTD 6/5/1978 IN THE NAME OF THE 3RD PETITIONER. EXT.P6:PHOTOGRAPH. EXT.P6(a):- PHOTOGRAPH. EXT.P6(b):- PHTOGRAPH. EXT.P6(c):- PHTOGRAPH. EXT.P6(d):- TRUE COPY OF TAX RECEIPT 19/9/2012. EXT.P7:TRUE COPY OF THE PROJECT REPORT PREPARED BY KARAMANAKALIYIKKAVILA BHOOMI PARPIDA SAMRAKSHNA CO-ORDINATORS COMMITTEE. EXT.P8:TRUE COPY OF THE REPRESENTATION SUBMITTED TO THEN CHIEF MINISTER. EXT.P9:TRUE COPY OF THE NEWS ITEM , WHICH APPEREARED IN THE MADHYAMAM DAILY DTD 20/12/2012. EXT.P9(a):- TRUE COPY OF THE RELEVANT PAGES OF MALAYALA MANORAMA DTD 14/12/2010. EXT.P10:TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE GOVERNMENT ON 6/1/2011. EXT.P11:TRUE COPY OF THE ORDER DTD 31/1/2009 OBTAINED THROUGH RIGHT TO INFORMATION ACT. WP(C).No. 5261 of 2013 (G) : 2 : EXT.P12:TRUE COPY OF THE GO(MS)NO 29/10/PWD DTD 27/5/2010. EXT.P13:_ TRUE COPY OF THE JUDGMENT IN WPC NO1345/2011(P)DTD 20/1/2011. EXT.P14:TRUE COPY OF THE IA NO 1076 OF 2011 IN WPC NO 1345/2011 DTD 17/1/2011. EXT.P15:TRUE COPY OF NOTIFICATION PUBLISHED IN THE GAZETTE DTD 9/8/2012. EXT.P16:TRUE COPY OF THE GOVERNMENT ORDER DATED 8/8/2012. EXT.P17:TRUE COPY OF THE NOTIFICATION DTD 17/8/2012 SERVED ON 10/9/2012 ON THE IST PETITIONER. EXT.P17(a):TRUE COPY OF THE NOTIFICATION DTD 17/8/2012 SERVED ON 10/9/2012 ON THE 2ND PETITIONER. EXT.P17(b):TRUE COPY OF THE NOTIFICATION DTD 17/8/2012 SERVED ON 10/9/2012 ON THE 3RD PETITIONER. EXT.P18:TRUE COPY OF THE OBJECTION TO SECTION 4(1) NOTIFICATION SENT BY IST PETITIONER ON 14/9/2012. EXT.P18(a):TRUE COPY OF THE OBJECTION TO SECTION 4(1) NOTIFICATION SENT BY 2ND PETITIONER ON 17/9/2012. EXT.P18(b):TRUE COPY OF THE OBJECTION TO SECTION 4(1) NOTIFICATION SUBMITTED BY DR.CHANDRIKA P.NAIR ON 17/9/2012. EXT.P19:TRUE COPY OF THE MAP SHOWING THE ALIGNMENT OF THE ROAD ILLEGALLY AND UNAUTHORIZEDLY FIXED BY THE 5TH RESPONDENT. EXT.P20:TRUE COPY OF THE REPRESENTATION DTD 30/5/2010 AND SKETCH. EXT.P21:TRUE COPY OF THE JUDGMENT DTD 15/10/2012 IN WPC NO 23113. EXT.P22:TRUE COPY OF THE NOTICE RECEIVED BY THE 2ND PETITIONER. EXT.P23:TRUE COPY OF THE COMPLAINT LODGED BEFORE THE 4TH RESPONDENT ON 30/12/2012. EXT.P24:TRUE COPY OF THE COMPLAINT SENT BY IST PETITIONER TO THE LAND REVENUE COMMISSIONER DTD 3/1/2013. EXT.P25:TRUE COPY OF THE COMPLAINT SENT IN THE ADDRESS OF LAND REVENUE COMMISSIONER INSTEAD OF COMMISSIONER OF LAND ACQUISITION DTD 3/1/2013. EXT.P26:TRUE COPY OF THE RELEVANT PAGE OF THE NOTIFICATION PUBLISHED IN KERALA KAUMUDI NEWSPAPER DTD 15/2/2013. WP(C).No. 5261 of 2013 (G) : 3 : ## RESPONDENTS' EXHIBITS EXT.R4(a): A TRUE COPY OF THE 4(c) NOTICES ISSUED TO THE 1ST AND 3RD PETITIONERS. EXT.R4(b): A TRUE COPY OF THE WRITTEN STATEMENTS FILED BY THE PETITIONERS. EXT.R4(c): A TRUE COPY OF THE PROCEEDINGS DATED 08.02.2013. /TRUE COPY/ P.A TO JUDGE ## **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.5261 of 2013-G ---------------------------------------------------Dated this the 11[th] April, 2013** ## **J U D G M E N T** The petitioners are owners of properties and buildings on the northern side of the road extending from Karamana to Kaliyikkavila. The petitioners have filed this Writ Petition aggrieved by the action of the respondents in initiating proceedings for the acquisition of their lands. They challenge the Notification issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act' for short) on 09.08.2012, which is Ext.P15, and Ext.P26 notification dated 15.02.2013 issued under Section 6 of the Act. The acquisition is for the widening of the Karamana-Kaliyikkavila road, to a width of 30.2 metres. According to the petitioners, a width of 22 metres is more than sufficient for laying out a road capable of containing four lining traffic. They are also aggrieved by Ext.P19, the alignment for the proposed road, which has been finalised, according to them, excluding Government/poramboke land abutting the road on the opposite side of the petitioners' properties and in such a manner as to favour rich and influential 2 **W.P(c) No.5261 of 2013-G** persons who have made constructions encroaching upon such public property. It is contended that, utilisation of the property available at the hands of the Government would not only reduce the cost of acquisition, but would also serve to reclaim the public property. A change of the alignment on the said lines would also straighten the curve that is visible in Ext.P19. Though the above objections were all submitted to the 3[rd] respondent, the proceedings have been finalised and Ext.P26 has been issued without conducting a proper enquiry under Section 5A of the Act. 2. According to Sri G.S.Raghunath, who appears for the petitioners, the respondents had conducted measurements and planted stones fixing the boundaries of the proposed road in the property of the petitioners without even issuing a Notification under Section 4(1) of the Act. Therefore, the petitioners challenged such proceedings before this Court by filing W.P(c) No.1345 of 2011. The said Writ Petition was disposed of by this Court by Ext.P13 judgment recording the undertaking of the Government Pleader that the proceedings for acquisition would be continued only in accordance with the provisions of the relevant law. Though the petitioners had submitted detailed 3 ## **W.P(c) No.5261 of 2013-G** objections to the proposal for acquisition, the representations were not considered. Therefore, the petitioners again approached this Court by filing W.P(c) No.23113 of 2012. The said Writ Petition was disposed of by Ext.P21 judgment dated 15.10.2012 directing the authoritites to consider the objections of the petitioners. Accordingly, though an enquiry under Section 5 A of the Act was conducted, it is contended that the objections of the petitioners were not considered. Without properly considering the objections raised, and without conducting a proper enquiry under Section 5A of the Act, Ext.P26 declaration under Section 6 of the Act has been issued. Therefore, the petitioners contend that the impugned proceedings are liable to be quashed by this Court. 3. It is contended by the learned counsel for the petitioners that a Notification under Section 4(1) of the Act is a necessary pre-requirement for initiating any action under the Act. Ext.P19 alignment shows that the same was prepared on 14.02.2012, as is evident from the date affixed below the signature of the Chief Engineer who has approved the same. However, the Section 4(1) Notification was issued only on 09.08.2012, long after Ext.P19. The said alignment having been **W.P(c) No.5261 of 2013-G** 4 finalised without the sanction of a Notification under Section 4 (1) of the Act, it is contended that the entire land acquisition proceedings that followed are tainted and vitiated by a lack of jurisdiction that goes to the root of the matter. According to the learned counsel, a reading of Rule 8(4) of the Land Acquisition (Kerala) Rules, 1990 (hereinafter referred to as `the Rules' for short) also makes the above position clear. Therefore, the impugned proceedings are all liable to be set aside. 4. The further contention of the learned counsel Sri G.S.Raghunath is that, Section 5A confers a very valuable right on a land owner to object to the proposed acquisition. Therefore, the said right cannot be taken away by the authorities by conducting a sham of an enquiry. Reliance is placed on the dictum laid down by the Hon'ble Supreme Court in the decisions reported in **Raghbir Singh Sehrawat v. State of Haryana and Ors.** [2011 KHC 5062] and **Hindusthan Petroleum Corporation Ltd. v. Darius Shapur, Chenai** [2006(1) KLT 230(SC)] to contend that each of objection would have to be objectively considered by the 3[rd] respondent before it can be said that the requirements of the Section are satisfied. In the present case, though specific objections were raised to the effect that it 5 **W.P(c) No.5261 of 2013-G** was not necessary to increase the width to 30.2 metres, that poramboke land was available to complete the acquisition without acquiring the properties of the petitioners and that the curve in Ext.P9 could be straightened by utilizing the poramboke land, the said objections have not been objectively considered. Therefore, according to the learned counsel, the impugned proceedings are liable to be set aside. 5. A counter affidavit has been filed by the 4[th] respondent. According to the counter affidavit, as per Exts.P12 and P16, the Government has accorded sanction for acquisition of the necessary land for the purpose of widening the KaramanaKaliyikkavila road. The same has been designed as Stretch I for the purpose of implementation. Accordingly, Ext.P15 Notification was issued. The petitioners submitted their objections to the proposal. Notices were issued to them directing them to attend a hearing on their objections. A hearing was scheduled on 31.10.2012. It was in the said circumstances, that the petitioners had approached this Court by filing W.P(c) No.23113 of 2012 and as per Ext.P21 judgment dated 15.10.2012, this Court directed that the objections of the petitioners be considered. Thereafter, the hearing was conducted, the objections of the **W.P(c) No.5261 of 2013-G** 6 petitioners were considered and overruled. It was thereafter that Ext.P6 declaration under Section 6 of the Act was published. It is pointed out that the compensation payable to the petitioners and others would be paid without delay. 6. With respect to the objections of the petitioners regarding the alignment, it is stated in the counter affidavit that, the alignment was fixed in such a way as to ensure that land of equal width was acquired from both the sides of the road. The land on the opposite side of the property of the petitioners belongs to the Regional Telecom Training Centre (RTTC) under the B.S.N.L. Almost the same width of land is being acquired from the said property also. 7. According to the 4[th] respondent, the petitioners are trying to create a confusion by mixing up the alignment sketch prepared by the Requisitioning Authority and the sketch that has to be prepared under the Land Acquisition Act and the Kerala Survey and Boundaries Act, 1961, by the Land Acquisition Officer. Ext.P19 is the alignment sketch prepared by the office of the National Highways, Public Works Department, Thiruvananthapuram. It was necessary for such a sketch to be prepared before acquisition proceedings could be undertaken. **W.P(c) No.5261 of 2013-G** 7 The said sketch has not been prepared under the Land Acquisition Act. Therefore, the contention of the petitioners in this regard is only to be rejected. A width of 30.2 metres is necessary for the movement of goods and passengers along the road, smoothly. Since the petitioners themselves are in possession of the balance property remaining after the acquisition, their allegation that the width of the road has been fixed at 30.2 metres with the object of giving road frontage to the properties behind is without any basis. For the above reasons, it is contended that this Writ Petition is only to be dismissed. 8. I have heard Sri G.S.Raghunath, who appears for the petitioners, as well as the learned Government Pleader in detail. Since a specific contention was put forward that there was no effective enquiry under Section 5A of the Act, that a number of persons numbering 40-50 were heard at the same time and only a farce of an enquiry was conducted, the learned Government Pleader was directed to make the files of the said enquiry available. Accordingly the files have been handed over to me. I have perused the files. I have also given my anxious consideration to the various contentions raised. 8 **W.P(c) No.5261 of 2013-G** 9. The first contention advanced by the learned counsel for the petitioners is that, since Ext.P19 alignment is seen to have been finalised on 14.02.2012, long before the Section 4(1) Notification was published on 09.02.2012, the same is an illegality that vitiates the entire proceedings that followed. Consequently, according to the learned counsel, the proceedings are all liable to be set aside. Section 4(1) of the Act mandates that whenever it appears to the concerned authority that land in any locality is needed or is likely to be needed for any public purpose, a Notification to that effect shall be published. According to Sub Section 2 of the said provision, thereupon it shall be lawful for any officer, either generally or specially authorised by such Government in this behalf, and for his servants and workmen, to do among other things, to enter upon and survey and take levels of any land in such locality. The proviso to the said provision reads as follows: “Provided that **no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling house (unless with the consent of the occupier thereto) without previously giving such occupier at least** 9 **W.P(c) No.5261 of 2013-G** ## **seven days' notice in writing of his intention to** **do so** ". (emphasis supplied) The above proviso makes it clear that even without a Notification under Section 4(1) of the Act, any of the acts prohibited thereunder is permissible with the consent of the land owner. 10. In the present case, a perusal of Ext.P19 shows that the alignment has been prepared by the National Highways Public Works Department, which is the Requisitioning Authority in respect of the present acquisition. According to the counter affidavit of the 4[th] respondent, no action either to enter the properties sought to be acquired, to measure them or to demarcate them in any manner was attempted by the Land Acquisitioning Authorities prior to Ext.P16 notification. Ext.P19 has been prepared by the National Highways, Public Works Department. It is the signature of the Chief Engineer of the said Department that appears in Ext.P19. There is no evidence or material available in this case regarding the authority in exercise of which the same was prepared. It is also not clear whether the said authority had entered the properties of the petitioners and others. However, since no person including the petitioners have 10 **W.P(c) No.5261 of 2013-G** raised any complaint against such entry or measurement, the only presumption possible is that the same was done with their consent. Such a course as noticed above, is permissible even under the proviso to Section 4(2) of the Act. Any such action, even if it is assumed to have been undertaken by the Land Acquisitioning Authorities, cannot vitiate the subsequent proceedings that have followed for the reason that the petitioners have acquiesced to the same. Therefore, the said contention cannot affect the validity of the impugned proceedings in any manner. 11. The next contention is that the enquiry under Section 5A of the Act conducted in the present case does not satisfy the requirements of the provision, as laid down by the Honourable Supreme Court. The learned counsel for the petitioners places reliance on the decision in **Hindusthan Petroleum Corporation Ltd. v. Darius Shapur, Chenai** (supra). Particular reliance is placed on para.19 of the said decision where it has been held that the State should apply its mind not only to the objections submitted by the land owners, but also to the report that is submitted by the District Collector after considering the said objections. Placing reliance on the dictum in 11 **W.P(c) No.5261 of 2013-G** **Raghbir Singh Sehrawat v. State of Haryana and Ors.** (supra), it is contended that the enquiry contemplated under Section 5A of the Act is a very valuable opportunity for a land owner to ventilate his grievances against the proposal to deprive him of his property. The said opportunity in order to be meaningful would have to be conducted objectively and with proper application of mind to each and every objection that is raised. In the present case, it is contended that about 40-50 people were heard together without affording them an opportunity for an individual hearing. Para.25 of the said judgment sets out the requirements of an enquiry under Section 5A. The said paragraph reads as follows: “25. In this context, it is necessary to remember that the rules of natural justice have been ingrained in the scheme of S.5A with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. He can also point 12 **W.P(c) No.5261 of 2013-G** out that land proposed to be acquired is not suitable for the purpose specified in the notification issued under S.4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilized for execution of the particular project or scheme. Though, it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons.” 12. In the present case, the contention of the petitioners is that the width proposed (30.2 metres) is unnecessary and a width of 22 metres is more than sufficient. A perusal of the file relating to the enquiry shows that the 4[th] respondent has considered the above objection. What the 4[th] respondent has 13 **W.P(c) No.5261 of 2013-G** done is to itemise the common objections after numbering them serially and to consider all the similar objections together. Accordingly, the above objections raised by the 133 persons have been considered and have been rejected. It is also stated that the width proposed is the width approved by the National Roads Congress and that the said width is required considering the volume of traffic on the road as well as the safety of the users of the road, taking into account the frequency of accidents and mortality rates in such accidents. 13. It cannot be disputed that the determination of an ideal width that is required for a road is a technical issue that has to be undertaken by experts in the said field. The same is not a legal issue that could be decided by this Court. In the absence of any material or evidence to show that the width proposed is so unreasonable as to warrant interference by this Court, I am not satisfied that the conclusion arrived at by the 4[th] respondent requires to be interfered with. 14. The other objections relating to the alignment have also been considered. According to the 4[th] respondent, the Government had considered the objections regarding the width of the road, seeking a reduction of the width to 22 metres and **W.P(c) No.5261 of 2013-G** 14 had decided to develop the road as 30.2 metres wide road of national standards. The objections regarding the difference in measurements and other matters have been accepted to a large extent and modifications in the alignment were also effected. Any further reduction in the width would only result in perpetual traffic congestion and other related problems. 15. Yet another contention of the petitioners is that the Government land available on the opposite side of their properties, if utilised after removing the trespassers who have encroached upon the same, would result in straightening of the curve that is seen in Ext.P19. Such a course would also obviate the hardships of the petitioners. The said objection has been considered as Serial Number 2 and it has been held that the poramboke land available in the path of the alignment has been utilised to the maximum extent possible. 16. It is to be noticed that the State of Kerala being a thickly populated State with considerable limitations on the availability of land, any acquisition for a public purpose is certain to visit a good section of the people with hardships and difficulties. It cannot be disputed that the roads in our State are in a deplorable condition. Lack of width, lack of maintenance, 15 **W.P(c) No.5261 of 2013-G** lack of facilities, and a host of other deficiencies reduce the standard of our roads to an abysmally low level, when compared with the roads in other parts of our country. It is also the practice in our State to construct buildings close to road margins, at many places even encroaching onto the side lands that form part of the roads. Vendors and street hawkers who conduct their businesses from makeshift structures and bunks also reduce the facilities available to the vehicles and pedestrians who use the roads. In the above scenario, widening of the road would have to be approached from a practical stand point, taking into account the ground realities. In the present case also, I notice that the proposal has emanated as far back as in the year 2010 and has been hanging fire for the past three years. The delay in execution of the project causes a lot of problems including an escalation in the costs of execution. Considering the number of objectors who have opposed the proceedings, it was neither possible nor practicable, for the authorities to have considered individual objections separately and to have passed separate orders considering each and every objection raised. A perusal of the files show that the authority has bestowed its mind to the objections raised. It is worth 16 ## **W.P(c) No.5261 of 2013-G** noticing that though a number of people had objected to the acquisition, the petitioners alone have complained. The indication appears to be that the objections of the others do not survive any longer. Since I do not find that there has been any violation of the mandatory procedures contemplated by the Act, there are no grounds to interfere with the impugned proceedings. For the foregoing reasons, this Writ Petition is dismissed. _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/