Govindan Nair and N. Hari v. Secretary, Department of Local Self Government, State of Kerala; District Collector, Kottayam; Special Tahsildar, Land Acquisition General, Kottayam; Secretary, Special Grade Manarkkad Panchayat; President, Manarkkad Grama Panchayat

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 694 of 2008(G) ------------------------ PETITIONER: ------------ 1. GOVINDAN NAIR,AGED 76, S/O. NARAYANA PILLAI, VATTAPARAMBIL HOUSE, VIJAYAPURAMKARA, MANARKKAD PANCHAYAT, KOTTAYAM. 2. N.HARI,AGED 43 YEARS,S/O.G.NARAYANAN NAIR,KANNAMPADATH HOUSE, MANARKKAD , KOTTAYAM DISTRICT. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENTS: - ------------- 1. THE SECRETARY,DEPT.OF LOCAL SELF GOVERNMENT,STATE OF KERALA,TRIVANDRUM. 2. THE DISTRICT COLLECTOR, KOTTAYAM. 3. THE SPECIAL TAHSILDAR, LAND ACQUISITION GENERAL, KOTTAYAM. 4. THE SECRETARY, SPECIAL GRADE MANARKKAD PANCHAYAT. 5. THE PRESIDENT,MANARKKAD GRAMA PANCHAYATH. BY ADV. SRI.MATHEW JOHN (K) FOR R4 & R5 SRI.AJEESH K.SASI FOR R4 R1 TO R3 BY GOVT. PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE, J.** ----------------------------------------------W.P.(C)No. 694 OF 2008 ----------------------------------------------Dated this the 12th day of June, 2008 ## **J U D G M E N T** In this writ petition under Article 226 of the Constitution the petitioners whose properties are proposed to be acquired under the emergency provisions of the Land Acquisition Act challenges the land acquisition proceedings initiated at the instance of the Manarkad Grama Panchayat represented by respondents 4 and 5. It is submitted that the first petitioner owns and possesses a total extent of 24 cents of land in Sy. No.816/8 of the Manarkad Village in block No.5 and out of the same land extending to 8.66 ares is now proposed to be acquired for the purpose of construction of a market and taxi stand for the Manarkad Grama Panchayat. On coming to know about the proposal the petitioners filed Ext.P1 representation before the 2[nd] respondent District Collector. It was alleged in Ext.P1 that the proposal is actuated by mala fides and that there is a family temple on the property and the acquisition will result in interference with the religious faith of the petitioner and his family. Ext.P2 is copy of the order issued by the first respondent secretary to Government in the Department of Local Self Government to the 4[th] respondent Secretary of the Grama Panchayat authorising the Panchayat to acquire WP(C)N0.694/08 -2- properties including that of the petitioner for accomplishing the object of establishing taxi stand and market. The petitioner approached this court challenging Ext.P2 and this court passed Ext.P3 judgment disposing of the writ petition directing that the petitioners' property shall not be taken possession before a notification under section 4(1) is issued and clarifying that the judgment will not stand in the way of survey is being conducted for the purpose of acquisition. Even after Ext.P3 there was an attempt to dispossess the petitioner from his property. Petitioner again approached this court and this court passed Ext.P4 order dated 16-2-2005 in WP(C). No. 5582/05 directing that the petitioner shall not be dispossessed other than through process under the L.A. Act. Subsequently Ext.P5 notification under section 4(1) dated 5-5-2005 was issued by the Government followed by Ext.P6 declaration under section 6 dated 25-1-2006 regarding acquisition of 10.17 ares of land belonging to the petitioner. Petitioner submits that he was not aware of Ext.P5 or P6 and could get the information only when he filed Ext.P7 application before the State Public Information Office. In the meanwhile the Panchayat committee resolved on 29-52007 by Ext.P8 to go ahead with the acquisition. Petitioner points that during the course of events the President of the Panchayat issued WP(C)N0.694/08 -3- Ext.P9 letter dated 31-5-2007 to the second respondent District Collector intimating that there are no funds and therefore permission should not be granted to go ahead with the acquisition. However, the petitioner is now served with notice under section 9(1) directing his appearance for award enquiry on 5-1-2008. The petitioner contends that the present proceedings initiated under the Central Land Acquisition Act are bad in view of section 62 of the Kerala Land Acquisition Act which provides that the Central Land Acquisition Act shall cease to apply for the State of Kerala. According to the petitioner, it is the Kerala Land Acquisition Act and the Rules thereunder are ought to apply. On the above facts and on the various grounds raised in the writ petition the petitioner prays for a direction to the respondents not to invoke the emergency clauses under the Land Acquisition Act for the present acquisition; (2) to hear the petitioner under section 5A before proceeding with the acquisition and (3) to declare that the Central Land Acquisition Act cannot apply to acquisitions in Kerala. 2. During the pendency of the writ petition award was passed and notice of the award was issued to the petitioner. He has produced the notice of award received by him as Ext.P10. Ext.P10 was passed WP(C)N0.694/08 -4- obviously due to the reason that the stay passed by this court was only regarding his possession and not against passage of award. The petitioner has also filed I.A.7200/08 seeking amendment of the writ petition for the purpose of incorporating a ground that the award is barred by limitation. I have not allowed the application for amendment. Sri.Mathew John K. Advocate on entering appearance for respondents 4 and 5 would submit that the issues involved in this writ petition where the proceedings for acquisition of the petitioners' property and other properties required by the Panchayat for establishment of the market and the taxi stand should be allowed has been finally decided by this court in WP(C) No. 19109/05 as well as in WP(C). No. 5773 of 2008. Mr. Mathew John submitted that Sri.P.C.Mathew had in fact endeavoured to advance the case of the writ petitioner also in WP(C). No. 19109/05 without success. As requested by Mr.Mathew John, the records relating to those two cases were also incorporated. It is seen that in WP(C). No.5773 of 2008 detailed counter affidavits were filed by the Panchayat as well as by the land acquisition officer and it was considering those counter affidavits also that I dismissed the writ petition holding that the judgment in WP(C). No.19109/05 has attained finality and that award WP(C)N0.694/08 -5- had been passed and entire compensation amount deposited regarding the properties acquired from Sri.P.C.Mathew. It was seen that the judgment in WP(C) No. 19109/05 had been produced as Ext.P1 in WP (C). No.5773/08. It was agreed that the pre-fixed rates by the Panchayat and by the land acquisition officer in the previous writ petitions can be considered for the purpose of this case also. 3. It was Advocate Sri.Rajesh who addressed me on behalf of the petitioner. Sri.Mathew John, Advocate addressed me on behalf of the Panchayat while Sri.Basanth Balaji, learned Government Pleader appeared for State and the official respondents. 4. The prayer of Sri.P.C.Mathew in WP(C). No. 19109/05 was for a writ of mandamus commanding the Panchayat not to acquire his property for establishment of the market and taxi stand; commanding the District Collector to hear him under section 5A of the Land Acquisition Act and for a direction not to invoke the urgency clause under subsections 1, 2 and 4 of the L.A. Act without proper application of mind. The proximity of Sri.Mathew's property to the famous Manarkad Church as well as to “a small temple” had been highlighted in the writ petition filed by Sri.Mathew. He had contended that the proposal to acquire his property was brought for in modification of an WP(C)N0.694/08 -6- earlier proposal to suit the interest of certain other persons including the Vice President of the Panchayat and the relatives of the Vice President of the Panchayat who own lands near to his property. The allegation was that the present proposal has been mooted so that the establishment of the market by acquiring Sri.Mathew's property will result in appreciation of the land value of those properties. Dispensation of the enquiry under section 5A had been challenged in that writ petition on various grounds. It had been contended that the establishment of a market very close to the temple was likely to arouse communal tensions in the locality since the market is going to have facilities for cow slaughtering and sale of beef. Suffice to say that all conceivable contentions against the proposal had been raised by Sri.P.C.Mathew in his writ petition. Ext.P1 is the judgment in the writ petition filed by Sri.P.C.Mathew. It has been noticed under Ext.P1 that the allegations of mala fides projected in the context of the so called involvement of the Vice President of the Panchayat and properties belonging to him and his relatives remained as an allegation and it was not substantiated by any convincing material. I had noticed that the non-impleadement of the Vice President of the Panchayat against whom allegations had been levelled was futile. I had also found that WP(C)N0.694/08 -7- even if the Vice President had been impleaded eo nomine then also it could not have been possible for the petitioner to substantiate the allegations since no material worth the name had been produced by the petitioner. It was found in Ext.P1 that the public nature of the proposal is beyond question and that the proposal is that of the local authority which should be expected to know the ground realities of the locality and to feel the pulse of the local people. I had also found that establishment of a public market and taxi stand in the place of the existing unsatisfactory arrangements will certainly be beneficial to the public inhabiting the Panchayat and that there is justification even for an initial presumption that the proposal is neither mala fide nor colourable exercise of power as alleged. Overruling the challenge against the order according sanction for invocation of emergency provisions I had found that the Government had considered the relevant materials and apply its mind to the question invocation of emergency provisions was necessary. In doing so, I had repelled the arguments raised on behalf of the petitioner that establishment of the market in proximity to the temple will arouse communal tensions in the locality. I had in fact found relying on the property tax assessment register maintained by the Panchayat that the so called WP(C)N0.694/08 -8- temple is not a public temple at all. I had also accepted the contention of the Panchayat that the apprehensions of communal tension are without basis. I had ultimately concluded that the request of the Panchayat to the Government for invocation of the emergency provisions was justified since the same was in the wake of successive orders passed by this court including an order in a contempt of court case. Thrust was given by Advocate Rajesh in his submissions on Sections 57(1), 57(2) and 65 of the Panchayat Raj Act. It was argued, invocation of the emergency provisions of the Land Acquisition Act can be had only for discharge of the mandatory functions of the Panchayat as per III Schedule to the Panchayat Raj Act. Establishment of market and taxi stand do not come within the mandatory functions and at the most can come under sector wise functions. Strong reliance was placed by Mr.Rajesh on the judgment of this court in Dr.Noor Mohammed v. District Collector, 1981 KLT 816. Sri.Mathew John, learned counsel for the Panchayat and Sri.Basanth Balaji, learned Govt. Pleader would meet the submissions of Mr.Rajesh by highlighting Ext.P1 judgment and also the subsequent judgment in WP(C). No. 5773 of 2008. 5. In reply Mr.Rajesh would submit that the issue has never been WP(C)N0.694/08 -9- examined by this court in the context of the provisions of the Panchayat Raj Act or in the light of this Court's judgment in Dr.Noor Mohammed's case. I have considered the rival submissions in the light of the statutory provisions and the judgment of this court in Dr.Noor Mohammed's case. It is true that in Dr.Noor Mohammed's case this court has indicated that emergency provisions of the Land acquisition Act cannot be invoked if the purpose of the acquisition is not discharge of the mandatory functions of the Panchayat. To that extent the ratio in that case supports the grounds raised by the petitioner. But at the same time it has been laid down in Dr.Noor Mohammed's case itself that for discharge of mandatory functions of the Panchayat also acquisition can be permitted under the ordinary provisions of the Land Acquisition Act. In the instant case the Panchayat was under compulsion of writs of this court and under the threat of initiation of contempt proceedings to complete the acquisition proceedings within a time frame. The writ court was as much binding on the Panchayat as the statutory provisions. It is taking note of the writs issued by this court and the orders passed by this court in C.C.C. Initiated at the instance of persons in whose favour writ had been issued against the petitioner directing the Panchayat to complete the acquisition within a WP(C)N0.694/08 -10- time frame and Ext.P1 judgment the challenge against the invocation of the emergency provisions was repelled. As stated in Ext.P1 the purpose of the acquisition is beyond controversy. The Government order according sanction for invocation of emergency provisions have been upheld in Ext.P1. The scope of an enquiry under section 5A is mainly to convince the land acquisition officer that acquisition of the petitioner's property is not necessary for accomplishment of the public purpose and dissuade the land acquisition officer against such acquisition. The grounds which the petitioner wanted to raise before the land acquisition officer in section 5A enquiry are obviously similar to the grounds raised by Sri.P.C.Mathew in Ext.P1 case. The findings of this court in Ext.P1 judgment in my opinion will apply to this case also. Challenge against the government order according sanction for invocation of emergency provisions is repelled. The other prayers are also declined. The writ petition will stand dismissed. ## **(PIUS C.KURIAKOSE, JUDGE)** ksv/- WP(C)N0.694/08 -11-